Jordan v. Howard

[Cite as Jordan v. Howard, 2021-Ohio-4025.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

SABRINA JORDAN, EXECUTRIX :
:
Plaintiff-Appellant : Appellate Case No. 29190
:
v. : Trial Court Case No. 2021-CV-927
:
JOHN HOWARD, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:

...........

OPINION

Rendered on the 12th day of November, 2021.

...........

JACQUELINE GREEN, Atty. Reg. No. 0092733, M. CAROLINE HYATT, Atty. Reg. No.
0093323, 441 Vine Street, Suite 3400, Cincinnati, Ohio 45202
and
SARAH GELSOMINO, Atty. Reg. No. 0084340, 50 Public Square, Suite 1900, Cleveland,
Ohio 44113
Attorneys for Plaintiff-Appellant

KELLY M. SCHROEDER, Atty. Reg. No. 0080637, 1 South Main Street, Suite 1800,
Dayton, Ohio 45402
Attorney for Defendants-Appellees

.............

WELBAUM, J.
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{¶ 1} Plaintiff-Appellant, Sabrina Jordan, Administrator of the Estate of Jamarco

McShann (“Jordan”) appeals from the dismissal of her case against Defendants-

Appellees, John Howard and Jerry Knight (collectively, “Defendants”). Jordan had

sued Howard and Knight, two City of Moraine Police officers, based on their involvement

in the shooting death of McShann. Previously, Jordan had sued these officers, and

others, in federal district court.

{¶ 2} According to Jordan, the trial court erred in dismissing her claims under

Civ.R. 12(B)(6), based on collateral estoppel and because they were time-barred. After

considering the issues, we find no error on the trial court’s part. Jordan’s claims for

negligence/recklessness, assault and battery, civil conspiracy, and survivorship were

barred because Jordan failed to refile those claims in state court within the time prescribed

by 28 U.S.C. 1367(d) or by R.C. 2305.19(A), after they were dismissed by the federal

district court.

{¶ 3} Furthermore, the trial court correctly found that Jordan’s remaining claim for

wrongful death was barred by issue preclusion, i.e., by the collateral estoppel effect of the

federal court action. Specifically, the federal district and appellate courts found that the

police officers acted reasonably to stop a serious threat of deadly force and did not violate

clearly established law. The state court claim for wrongful death involved the same

parties, and the same evidence would sustain the issues involved in both proceedings.

As a result, collateral estoppel applied and prevented Jordan from relitigating her claim in

state court. Accordingly, the trial court’s judgment will be affirmed.
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I. Facts and Course of Proceedings

{¶ 4} Because this matter was dismissed under Civ.R. 12(B)(6), we will assume

that the allegations in the complaint are true. Mitchell v. Lawson Milk Co., 40 Ohio St.3d

190, 192, 532 N.E.2d 753 (1988).

{¶ 5} According to the complaint, “[o]n October 20, 2017, at approximately 5:15

a.m., Jamarco McShann was sleeping in a lawfully parked car located at the Valleyview

Apartments in Moraine, Ohio. Defendant Jerry Knight arrived at the Valleyview

Apartments in response to a complaint regarding a vehicle with loud noise in the parking

lot. Defendant Officer John Howard also responded to Valleyview Apartments.

Although Officer Michael Cornely knew two Moraine Police officers already responded,

he too went to the Valleyview Apartments in response to the loud music call. Once the

three officers were on the scene, they approached Jamarco’s vehicle. Inside, the officers

saw Jamarco asleep in the drivers’ seat. They did not know who he was. They also

claimed that they saw a gun in the car.” Complaint (March 9, 2021), ¶ 6-11.

{¶ 6} “Ohio is an open-carry state. Ohio law permits carrying weapons and does

not per se prohibit extended capacity magazines. Ohio concealed handgun licenses

allow loaded handguns inside vehicles and permit drivers to transport or have a loaded

handgun on or about their person. * * * Jamarco remained asleep in the car. He did not

pose any threat of death or serious physical harm to the Defendant Officers or to any

other person. Defendants decided they would attempt to wake Jamarco.” Id. at ¶ 12-

14.

{¶ 7} “The officers decided to run the plates on the car, which came back

registered to a woman in the apartment complex. They decided to try to find her because
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it would have been helpful and less startling for a familiar person to wake Jamarco. They

sent Cornely to knock on her door. While they waited for Cornely to return, Knight and

Howard milled around a tree. No one answered the door, and Cornely returned alone.

Howard decided to place stop sticks around the vehicle to prevent it from moving, and

Knight moved his cruiser to shine his spotlight onto Jamarco’s car.” Id. at ¶ 15-17.

{¶ 8} “Even though they were addressing a minor complaint for noise, though gun

possession is legal in Ohio, and though Jamarco had engaged in no conduct that

suggested he presented a threat of any kind, Defendant Officer Howard asked the

Moraine Police dispatcher to contact officers at the Moraine Police station for additional

help. Jamarco remained asleep in the car. Howard, Knight, and Cornely continued to

mill about on the apartment grounds, without bothering to watch Jamarco or his car, as

they waited.” Id. at ¶ 18-19.

{¶ 9} “Moraine officers O’Neal and Eller arrived next. Up to this point in time,

Defendants and their fellow officers did not attempt to provide any medical aide [sic] to

Jamarco, did not check for breathing, and did not attempt to wake him. Eller stayed on

the apartment grounds, while Defendant Howard ordered the other officers to take

designated places surrounding the car, where Jamarco slept. Nearly thirty minutes after

arriving on scene, without any legitimate reason to rush or engage in aggressive policing,

Defendant Howard ordered his fellow officers to take tactical positions with their weapons

drawn.” Complaint at ¶ 20-23.

{¶ 10} “Defendant Howard positioned himself on the curb at the rear windshield of

the car. Officer Cornely was positioned near the front passenger’s window. O’Neal

stood by the driver’s window holding a ballistic shield, and Defendant Knight stood behind
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O’Neal. All the officers pointed their guns at Jamarco, who had not moved and was still

asleep. As the officers took positions around the car, DaShelle Sparks, Jamarco’s

fiancée, approached. She had been at her cousin’s apartment nearby when Cornely

knocked on her door, and when a neighbor told her about the situation outside, * * * she

headed to the area with her cousin. She saw police around her car. DaShelle told

police that she owned the car and her son’s father was inside.” Id. at ¶ 24-26.

{¶ 11} “Eller approached DaShelle, pointed his gun in her face, and ordered her to

put up her hands or he would shoot. DaShelle complied and took a couple steps back.

None of the officers – including Howard, who had taken charge of the scene, and Knight,

who became the person to initiate contact with McShann – stopped the process of

surrounding the car to allow DaShelle to approach. None of the officers even attempted

to call off the approach in order to have DaShelle approach Jamarco to wake him. With

nothing but a noise complaint, a sleeping man, and the alleged gun in the car to justify

their conduct, Defendants and their fellow officers took action. Defendant Knight

knocked at the rear driver’s side window behind Jamarco’s head, and at the same time,

all the officers started screaming in a cacophony of competing commands.” Id. at ¶ 27-

29.

{¶ 12} “Jamarco sat up, startled, and put his hands in the air. He did not present

a threat of any kind. Seconds later, Defendant Knight fired his pistol and then Defendant

Howard pulled the trigger on his shotgun. Knight fired seven times and Howard fired

twice. Their bullets pierced Jamarco’s body all over, killing him. Jamarco McShann did

not pose a threat of death or serious physical harm at the time Defendants Howard and

Knight killed him. * * * Though Detective Eller requested medics as soon as shots were
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fired, miscommunication between Eller, Defendant Officers, the dispatch officer, and the

Moraine Fire Department EMS caused the delay of life-saving measures by EMTs who

were moments away, awaiting authorization to enter the scene. * * * When EMTs finally

arrived to treat Jamarco, he was pronounced dead on the scene.” Id. at ¶ 30-35.

{¶ 13} The complaint further alleged that “[t]he Defendant Officers jointly agreed

and/or conspired with one another to prepare false, misleading, and incomplete official

reports and to give false, incomplete, and misleading versions to their supervisors and to

the public. In order to cover up their misconduct, they falsely claimed that Jamarco

McShann placed them in imminent fear of bodily harm.” Id. at ¶ 37.

{¶ 14} Based on these allegations, Jordan asserted state claims for “negligence –

reckless conduct,” assault and battery, civil conspiracy, survivorship, and wrongful death.

Id. at p. 8-10. The complaint also noted that Jordan had previously filed suit against

Defendants and other officers in the United States District Court on March 20, 2018, and

had asserted federal civil rights claims and state claims. Id. at ¶ 46. In addition, the

complaint stated that after Jordan had dismissed all claims against Eller, the remaining

defendants (Howard, Knight, Cornelly, and O’Neal), had filed summary judgment motions.

Id.

{¶ 15} On February 18, 2020, the federal district court granted summary judgment

to the remaining defendants other than O’Neal, to whom Jordan had given a notice of

dismissal. Id.; Jordan v. Howard, 440 F.Supp.3d 843, 857 (S.D.Ohio 2020) (Jordan I).

The court also declined to exercise supplemental jurisdiction over the state law claims

and dismissed them without prejudice. At that point, Jordan appealed to the Sixth Circuit

Court of Appeals, which affirmed the district court’s judgment on February 3, 2021.
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Jordan v. Howard, 987 F.3d 537 (6th Cir.2021) (Jordan II). The Sixth Circuit Court of

Appeals also denied Jordan’s petition for rehearing en banc on March 8, 2021. Jordan

then filed the current state court action against only Howard and Knight on March 9, 2021.

{¶ 16} On April 9, 2021, Defendants filed a motion to dismiss the complaint and

attached copies of the federal court decisions to the motion. The motion was based on

the fact that the statute of limitations had expired and that the claims were also barred by

collateral estoppel due to the federal court decisions. After Jordan filed a response,

Defendants filed a reply. Jordan then filed a surreply.

{¶ 17} On June 15, 2021, the trial court granted the motion to dismiss, finding that

the survivorship claims, including civil conspiracy and negligent-reckless conduct

sounded in assault and battery, and were barred under the one-year statute of limitations

for that tort. Decision, Order, and Entry Sustaining Defendants’ Motion to Dismiss; Entry

of Dismissal (“Decision”) (June 15, 2021), p. 4-5. The court further found that all the

state claims, including wrongful death, were barred by collateral estoppel. Id. at p. 10-

21. Jordan timely appealed from the trial court’s dismissal of her action.

II. Statute of Limitations

{¶ 18} For purposes of convenience, we will address the assignments of error out

of order. Jordan’s second assignment of error states that:

The Trial Court Erred as a Matter of Law in Dismissing Plaintiff’s

Claims as Time-Barred.

{¶ 19} Under this assignment of error, Jordan concedes that a one-year statute of

limitations applies to bodily injuries arising from assault or battery. However, she
 -8-

contends that her remaining claims based on negligence/recklessness are subject to the

longer two-year statute of limitations for bodily injury resulting from negligence, and that

a two-year statute of limitations also applies to the civil conspiracy, wrongful death, and

survivorship claims. In addition, Jordan argues that even if a one-year statute applies,

she was entitled to calculate the date for refiling her state-law claims from the time the

Sixth Circuit Court of Appeals affirmed the district court’s decision, which would make the

claims timely.

{¶ 20} Before addressing these points, we will outline the applicable standards of

review.

A. Standards of Review

{¶ 21} “A motion to dismiss for failure to state a claim upon which relief can be

granted 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, 605 N.E.2d 378 (1992). As

noted, when such motions are considered, a trial court “must presume that all factual

allegations of the complaint are true and make all reasonable inferences in favor of the

non-moving party.” Mitchell, 40 Ohio St.3d at 192, 532 N.E.2d 753. Then, before the

complaint may be dismissed, “it must appear beyond doubt that plaintiff can prove no set

of facts warranting a recovery.” Id., citing O'Brien v. Univ. Community Tenants Union,

42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶ 22} “A motion to dismiss based upon a statute of limitations may be granted

only when the complaint shows conclusively on its face that the action is time-barred.”

LGR Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98

N.E.3d 241, ¶ 10, citing Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376,
 -9-

433 N.E.2d 147 (1982), paragraph three of the syllabus. However, in deciding motions

to dismiss, courts may also consider materials referenced or incorporated in a complaint.

State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d

1281 (1997) fn.1. Accord Thomas v. Progressive Cas. Ins. Co., 2011-Ohio-6712, 969

N.E.2d 1284, ¶ 9 (2d Dist.). Consequently, in reviewing the dismissal, we will consider

the federal decisions that Jordan attached to her complaint.

{¶ 23} Orders granting Civ. R. 12(B)(6) motions to dismiss are reviewed under a

de novo standard of review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-

Ohio-4362, 814 N.E.2d 44, ¶ 5. This means that we conduct an independent review,

giving no deference to the trial court's decision on matters of law. Boyd v. Archdiocese

of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 13, citing Ament v.

Reassure Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 60

(8th Dist.).

B. Discussion

{¶ 24} The trial court dismissed the claims for negligence/recklessness, civil

conspiracy, and survivorship because they were not filed within the statute of limitations.

Specifically, the court concluded that the statute of limitations for assault and battery

should apply to these claims because they sounded in assault and battery. Decision

(June 15, 2021), at p. 2-3.

{¶ 25} The statute of limitations for filing a lawsuit based on assault and battery is

one-year after the date on which the assault or battery occurred. R.C. 2305.111(B)(1).

The statute of limitations for bodily injury claims based on negligence is two years. R.C.
 -10-

2305.10(A); Love v. City of Port Clinton, 37 Ohio St.3d 98, 524 N.E.2d 166, (1988). After

reviewing the record and applicable law, we reject Jordan’s claim that the longer two-year

statute of limitations applied to the civil conspiracy, negligence/recklessness and

survivorship claims.

{¶ 26} The trial court specifically stated in its decision that Jordan had “not

disputed, as argued by Defendants, that the survivorship claims in this case, including

negligence-reckless conduct and civil conspiracy, are sounded in assault and battery and

are subject to the one-year statute of limitations set forth in R.C. 2305.111(B).” Decision,

(June 15, 2021), at p. 4-5.

{¶ 27} The court was correct. During the lower court proceedings, Jordan argued

only that her complaint was timely because it was filed within one year after the Sixth

Circuit had affirmed the district court’s decision. See Plaintiff’s Memorandum in

Opposition to Defendants’ Motion to Dismiss (May 6, 2021), p. 11-13, and Plaintiff’s

Surreply in Opposition to Defendant’s Motion to Dismiss Complaint (May 17, 2021).

{¶ 28} A long-established legal principle is that appellate courts “will not consider

any error which could have been brought to the trial court's attention, and hence avoided

or otherwise corrected.” Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436

N.E.2d 1001 (1982). An exception exists for plain error, where “but for the error, the

outcome of the trial clearly would have been otherwise.” State v. McKee, 91 Ohio St.3d

292, 294, 744 N.E.2d 737 (2001). However, in civil appeals, “the plain error doctrine is

not favored and may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial court, seriously

affects the basic fairness, integrity, or public reputation of the judicial process, thereby
 -11-

challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.

Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

{¶ 29} Our review of the record discloses no such error. The Supreme Court of

Ohio has held that “in determining which limitation period will apply, courts must look to

the actual nature or subject matter of the case, rather than to the form in which the action

is pleaded. The grounds for bringing the action are the determinative factors, the form

is immaterial.” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298

(1984). The court has also said that “[w]here the essential character of an alleged tort is

an intentional, offensive touching, the statute of limitations for assault and battery governs

even if the touching is pled as an act of negligence. To hold otherwise would defeat the

assault and battery statute of limitations. Nearly any assault and battery can be pled as

a claim in negligence.” Love, 37 Ohio St.3d at 99, 524 N.E.2d 166. Thus, in Love, the

court found allegations that an officer “ ‘negligently and recklessly subdued and

handcuffed’ ” a suspect “ ‘using improper police procedures and methods which resulted

in personal injury’ ” was governed by the statute of limitations for assault and battery. Id.

at 99-100.

{¶ 30} Here, regardless of the complaint’s characterization of the claims, whether

as survivorship or negligence/recklessness, the gist was an action for assault and battery

arising out of the use of force against McShann.

{¶ 31} Furthermore, a civil conspiracy claim “requires proof of ‘a malicious

combination of two or more persons to injure another in person or property, in a way not

competent for one alone, resulting in actual damage.’ ” Kimmel v. Lowe's, Inc., 2d Dist.

Montgomery No. 23982, 2011-Ohio-28, ¶ 20, quoting Kenty v. Transamerica Premium
 -12-

Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). “ ‘A claim for conspiracy

cannot be made [the] subject of a civil action unless something is done which, in the

absence of the conspiracy allegations, would give rise to an independent cause of

action.’ ” Davis v. Clark Cty. Bd. of Commrs., 2013-Ohio-2758, 994 N.E.2d 905, ¶ 20 (2d

Dist.), quoting Cully v. St. Augustine Manor, 8th Dist. Cuyahoga No. 67601, 1995 WL

237129, *4 (April 20, 1995). “In other words, ‘[a]n underlying unlawful act is required

before a civil conspiracy claim can succeed.’ ” Id. (Other citation omitted.) As a result,

“the applicable statute of limitations for filing a civil conspiracy is the relevant limitations

statute for the underlying cause of action.” Id.

{¶ 32} Again, the underlying cause of action was for assault and battery, and the

statute of limitations for civil conspiracy would also be the one-year statute applied to that

claim. Accordingly, the trial court did not commit plain error in applying the one-year

statute of limitations to the reckless/negligence, survivorship, and civil conspiracy claims.

{¶ 33} As indicated, McShann’s death occurred on October 20, 2017, and the

federal action involving both federal and state law claims was filed on March 20, 2018,

which was clearly within the one-year time limit for assault and battery. Under 28 U.S.C.

1367(a), federal district courts may exercise supplemental jurisdiction over state law

claims “that are so related to claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article III of the United States

Constitution.”

{¶ 34} However, 28 U.S.C. 1367(c)(3) allows federal courts to decline

supplemental jurisdiction where the court dismisses all the federal claims over which it

has original jurisdiction. That is what occurred here. This is consistent with federal
 -13-

policy, which holds that “[w]hen all federal claims are dismissed before trial, the balance

of considerations usually will point to dismissing the state law claims, or remanding them

to state court if the action was removed.” Musson Theatrical, Inc. v. Fed. Express Corp.,

89 F.3d 1244, 1254-1255 (6th Cir.1996). As noted, the district court dismissed Jordan’s

state laws claims without prejudice on February 18, 2020.

{¶ 35} Pertinent to such situations, 28 U.S.C. 1367(d) provides that:

The period of limitations for any claim asserted under subsection (a),

and for any other claim in the same action that is voluntarily dismissed at

the same time as or after the dismissal of the claim under subsection (a),

shall be tolled while the claim is pending and for a period of 30 days after it

is dismissed unless State law provides for a longer tolling period.

{¶ 36} In interpreting 28 U.S.C. 1367(d), some Ohio courts had adopted the

“extension approach,” which “ ‘treats that period in the statute – the federal claim period

plus thirty days – as a single span of time. If the state limitations period runs out during

that span, the thirtieth day after dismissal becomes the new filing deadline. * * * If,

however, the state limitations period does not run out during that span of time, the state

limitations period is unaffected and terminates without regard to any federal court filings.’ ”

Smith v. Erie Cty. Sheriff's Dept., 2016-Ohio-543, 59 N.E.3d 725, ¶ 16 (6th Dist.), quoting

In re Vertrue Inc. Marketing and Sales Practices Litigation, 719 F.3d 474, 481 (6th

Cir.2013). Courts have also used two other methods: the “stop-the-clock” approach,

during which the statute of limitations is suspended prior to dismissal of the federal action,

or a “grace period” approach, which simply allows plaintiffs to refile in state court so long

as they do so within 30 days after the federal action is dismissed. Id., citing Vertrue.
 -14-

{¶ 37} Recently, however, the United States Supreme Court resolved the

competing approaches and held that “§ 1367(d)'s instruction to ‘toll’ a state limitations

period means to hold it in abeyance, i.e., to stop the clock.” Artis v. D.C., ___ U.S. ___,

138 S.Ct. 594, 598, 199 L.Ed.2d 473 (2018). The court’s decision was primarily based

on the following factors: (1) the ordinary meaning of “tolling” in the context of statutory

time prescriptions as pausing the progression of time; (2) the fact that legislative

provisions generally have not ascribed grace period meanings to the word “tolled”; (3) the

lack of the court’s own judicial decisions (except one) that had used tolling language to

describe grace periods; and (4) the language of the statute itself. Id. at 601-604.

Accordingly, the court held that 28 U.S.C. 1367(d) “suspends the statute of limitations for

two adjacent time periods: while the claim is pending in federal court and for 30 days

postdismissal. * * * That is, the limitations clock stops the day the claim is filed in federal

court and, 30 days postdismissal, restarts from the point at which it had stopped.” Id. at

603.

{¶ 38} As noted, 28 U.S.C. 1367(d) provides for a 30-day limit “unless State law

provides for a longer tolling period.” Concerning this provision, the United States

Supreme Court observed in Artis that a plaintiff “would have the benefit of § 1367(d)'s 30-

days-to-refile prescription, or such longer time as state law prescribes.” Id. at 606.

{¶ 39} As pertinent here, Ohio’s savings statute, R.C. 2305.19(A), states that:

In any action that is commenced or attempted to be commenced,

* * * if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the

plaintiff dies and the cause of action survives, the plaintiff's representative

may commence a new action within one year after * * * the plaintiff's failure
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otherwise than upon the merits or within the period of the original applicable

statute of limitations, whichever occurs later.

(Emphasis added.)

{¶ 40} Applying these principles to the case before us, Jordan’s cause of action

arose on October 17, 2017. Normally, the statute of limitations would have expired within

one year after that date.

{¶ 41} On March 20, 2018, when Jordan filed in federal court, 152 days had

elapsed. The clock was then tolled until February 3, 2020, when the district court

dismissed Jordan’s supplemental state law claims without prejudice. At that point (as

the trial court noted), Jordan had 243 days left within to file, which included the remaining

213 days left on the original one-year statute of limitations for assault and battery and the

30-days allowed by 28 U.S.C. 1367(d). This required Jordan to refile her action in state

court by October 18, 2020. Alternatively, applying the longer 12-month period in Ohio’s

savings statue, Jordan had until February 4, 2021 to refile. However, Jordan failed to do

so until March 9, 2021, which was clearly untimely.

{¶ 42} We note that while 28 U.S.C. 1367(d) refers to a “tolling period,” the

Supreme Court of Ohio has said that “R.C. 2305.19(A) neither operates as a statute of

limitations nor operates to toll the statute of limitations.” (Citations omitted.) Wilson v.

Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 18. Thus, one might

argue that 28 U.S.C. 1367(d) does not apply. However, in Wilson, the court went on to

comment that R.C. 2305.19(A) rather “provides a plaintiff with a limited period of time in

which to refile a dismissed claim by commencing a new action that would otherwise be

barred by the statute of limitations.” Id., citing Internatl. Periodical Distribs. v. Bizmart,
 -16-

Inc., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7.

{¶ 43} For purposes of the analysis here, how the savings statute is described is

irrelevant. Whether it is labeled as a tolling period or as a time to commence a new

action does not affect its application in the context of this case. Nonetheless, we need

not decide this point, because under either scenario, Jordan’s refiled action was untimely

with respect to the claims for assault and battery, negligence/recklessness, survivorship,

and civil conspiracy. This leaves the wrongful death claim, which has a two-year statute

of limitations, and was timely-filed. R.C. 2125.02(D)(1). We will address that claim in

the context of collateral estoppel.

{¶ 44} As noted, Jordan’s final argument is that the trial court erred by failing to

calculate the limitations period from the date the Sixth Circuit Court of Appeals issued its

decision affirming the district court’s decision (February 3, 2021). According to Jordan,

this would result a timely refiling, because the one-year statute of limitations would not

have expired until October 5, 2021, under 28 U.S.C. 1367(d), or until February 3, 2022, if

R.C. 2305.19(A) applied.

{¶ 45} In our opinion, Jordan’s position is contrary to the wording of 28 U.S.C.

1367(d), which tolls the period of limitation “while the claim is pending and for a period of

30 days after it is dismissed * * *.” An appellate court like the Sixth Circuit Court of

Appeals does not dismiss claims; instead, as here, it affirms the lower court’s dismissal

of the claims.

{¶ 46} Furthermore, Jordan has not cited any decisions in which 28 U.S.C. 1367(d)

has been applied in the manner she suggests. Rather, she cites a case from the

Supreme Court of Ohio which indicates that cases are “pending and the effect of the trial
 -17-

court’s judgment is suspended until it enters its own final judgment.” Appellant’s Brief,

p. 23, citing Maynard v. Eaton Corp., 119 Ohio St.3d 443, 2008-Ohio-4542, 895 N.E.2d

145, ¶ 13. Under this theory, the district court’s dismissal was “pending” and was not

final until affirmed by the court of appeals – meaning that the limitations period should be

calculated from the latter date.

{¶ 47} It is true that in Maynard, the court stated that “ ‘ “an action or suit is

‘pending’ from its inception until the rendition of final judgment.” ’ ” Id., quoting Van

Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 103, 522 N.E.2d 489 (1988), which

in turn quotes Black's Law Dictionary 1021 (5th Ed.1979). However, Maynard involved

application of appropriate rates of interest on final judgments, which is not pertinent here.

{¶ 48} Nonetheless, even if Maynard were relevant, our first task in interpretation

is to “look to the plain language of the statute itself to determine the legislative intent.”

Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11, citing

State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997).

“Where the language of a statute is plain and unambiguous and conveys a clear and

definite meaning there is no occasion for resorting to rules of statutory interpretation. An

unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St.

312, 55 N.E.2d 413 (1944), paragraph five of the syllabus. Accord Ohio Renal Assn. v.

Kidney Dialysis Patient Protection Amendment Committee, 154 Ohio St.3d 86, 2018-

Ohio-3220, 111 N.E.3d 1139, ¶ 23.

{¶ 49} We see nothing ambiguous about 28 U.S.C. 1367(d) in this regard. It

clearly connects a “pending” claim to its “dismissal.” Consequently, the appropriate time

for calculating the limitations period is from the district court’s dismissal of the action.
 -18-

{¶ 50} Jordan’s other argument is based on policy, i.e., that judicial resources are

wasted by requiring actions to be refiled in state court while pending appeals in federal

court might be successful and might reinstate the dismissed state supplemental claims.

However, if that is a concern, a state court action could be stayed until the federal appeal

ends. Again, the statute’s wording is clear, and our duty is to apply it as written, not to

impose our own policy considerations.

{¶ 51} Based on the preceding discussion, the second assignment of error is

without merit and is overruled. As indicated, we will now consider the application of

collateral estoppel to the only remaining claim, which is for wrongful death.

II. Application of Collateral Estoppel

{¶ 52} Jordan’s first assignment of error states that:

The Trial Court Erred as a Matter of Law in Dismissing Plaintiff's

Claims Based on Collateral Estoppel.

{¶ 53} Under this assignment of error, Jordan contends that the trial court made

several erroneous conclusions, the first of which was that the state law issues, including

whether the officers acted recklessly, were the same as those involved in the federal

litigation. Before we consider this point, we will outline the standards to be applied to res

judicata and collateral estoppel, while bearing in mind the standards relevant to motions

to dismiss.

A. Res Judicata

{¶ 54} In Ohio, “[t]he doctrine of res judicata encompasses the two related
 -19-

concepts of claim preclusion, also known as res judicata or estoppel by judgment, and

issue preclusion, also known as collateral estoppel.” O'Nesti v. DeBartolo Realty Corp.,

113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6, citing Grava v. Parkman Twp.,

73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). “The doctrine of issue preclusion, also

known as collateral estoppel, holds that a fact or a point that was actually and directly at

issue in a previous action, and was passed upon and determined by a court of competent

jurisdiction, may not be drawn into question in a subsequent action between the same

parties or their privies, whether the cause of action in the two actions be identical or

different.” (Citations omitted.) Fort Frye Teachers Assn., OEA/NEA v. State Emp.

Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998).

{¶ 55} “While the merger and bar aspects of res judicata have the effect of

precluding the relitigation of the same cause of action, the collateral estoppel aspect

precludes the relitigation, in a second action, of an issue that has been actually and

necessarily litigated and determined in a prior action that was based on a different cause

of action. * * * ‘In short, under the rule of collateral estoppel, even where the cause of

action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect

the outcome of the second suit.’ ” Id., quoting Whitehead v. Gen. Tel. Co., 20 Ohio St.2d

108, 112, 254 N.E.2d 10 (1969), overruled on other grounds, Grava, at syllabus. “If the

same evidence would sustain both issues, then the two issues are the same for purposes

of applying collateral estoppel.” Id. at 396, citing Norwood v. McDonald, 142 Ohio St.

299, 52 N.E.2d 67 (1943), paragraph four of the syllabus, overruled on other grounds,

Grava, at syllabus.

{¶ 56} “As a general rule, in order for the principle of res judicata to be applicable,
 -20-

the parties to the subsequent action must be identical to those of the former action or be

in privity with them.” Johnson's Island, Inc. v. Bd. of Twp. Trustees of Danbury Twp., 69

Ohio St.2d 241, 244, 431 N.E.2d 672 (1982).

B. Discussion

{¶ 57} In the case before us, Jordan does not challenge the identity of parties, nor

could she, since all the parties named here were also involved in the federal action.

However, Jordan does contend that the issues are different, because her claims of

recklessness/negligence, assault and battery, civil conspiracy, survivorship, and wrongful

death are not identical to the issue of the reasonableness of excessive force that the

federal action decided.

{¶ 58} As an initial point, the only claim we need to consider is wrongful death,

because the other claims are time-barred. In discussing this claim, the trial court outlined

the law regarding wrongful death actions, sovereign immunity, and collateral estoppel.

Decision (June 15, 2021), at p. 10-19. Then, after reviewing both federal court decisions,

the trial court found that the same evidence would prove the underlying facts in both

proceedings, and that collateral estoppel precluded relitigation of the officers’ conduct

because the federal courts had held that the officers had acted in an objectively

reasonable manner. Id. at p. 19-22. Again, because this case was resolved by a

motion to dismiss, we review the trial court’s decision on a de novo basis. Perrysburg

Twp., 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, at ¶ 5.

{¶ 59} As indicated, in challenging the trial court’s decision, Jordan contends that

the issue of recklessness, as raised in this action, is not identical to the issue of whether
 -21-

the officers’ use of force was reasonable. Jordan also argues that the trial court used

conflicting definitions of recklessness and improperly included a definition involving a

“perversity” standard that the Supreme Court of Ohio has rejected. Appellant’s Brief at

p. 12, citing Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d

266. Before considering these points, we will briefly discuss the relevant law.

1. Wrongful Death

{¶ 60} “An action for wrongful death affords a civil remedy which compensates

others for the death of a person caused by the wrongful act, neglect, or default of a third

person.” Monnin v. Fifth Third Bank of Miami Valley, N.A., 103 Ohio App.3d 213, 228,

658 N.E.2d 1140 (2d Dist.1995).

{¶ 61} “In order to prevail in a wrongful death cause of action, the personal

representative of the decedent must prove these elements: “1) a wrongful act, neglect or

default of defendant which proximately caused the death and which would have entitled

the decedent to maintain an action and recover damages if death had not ensued; 2) that

a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that

the survivors suffered damages by reasons of the wrongful death.” Bishop v. Nelson

Ledges Quarry Park, Ltd., 11th Dist. Portage No. 2004-P-0008, 2005-Ohio-2656, ¶ 19,

citing McCormac, Wrongful Death in Ohio, Section 2.02. Where the action is based on

negligence, “a plaintiff must show (1) the existence of a duty owing to plaintiff's decedent,

i.e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate

causation between the breach of duty and the death.” Bennison v. Stillpass Transit Co.,

5 Ohio St.2d 122, 214 N.E.2d 213 (1966), paragraph one of the syllabus. Of course,

where liability of employees of political subdivisions is involved, additional standards
 -22-

apply. In other words, negligence alone is insufficient.

2. Immunity of Political Subdivisions and Employees

{¶ 62} For purposes of deciding political subdivision immunity under R.C. Chap.

2744 for injuries to others, courts employ a three-tier analysis. Pelletier v. Campbell, 153

Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 15. “The first tier is the general

rule that a political subdivision is immune from liability incurred in performing either a

governmental function or proprietary function. * * * However, that immunity is not

absolute.” Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781,

¶ 7, citing R.C. 2744.02(B) and Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610

(1998).

{¶ 63} “The second tier of the analysis requires a court to determine whether any

of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political

subdivision to liability.” Id. at ¶ 8. Third, “[i]f any of the exceptions to immunity in R.C.

2744.02(B) do apply and no defense in that section protects the political subdivision from

liability, then the third tier of the analysis requires a court to determine whether any of the

defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense

against liability.” Id. at ¶ 9.

{¶ 64} Jordan did not sue the City of Moraine in either federal or state court.

Instead, she sued only the individual police officers who were involved in the incident

leading to McShann’s death. As a result, the three-tiered analysis does not apply. In

situations involving the immunity of individual subdivision employees, “R.C. 2744.03(A)(6)

states that an employee is immune from liability unless the employee's actions or

omissions are manifestly outside the scope of employment or the employee's official
 -23-

responsibilities, the employee's acts or omissions were malicious, in bad faith, or wanton

or reckless, or liability is expressly imposed upon the employee by a section of the

Revised Code.” Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865

N.E.2d 9, ¶ 17.

{¶ 65} There was no question here that Defendants were engaged in a

government function and that their actions were within the scope of their official duties.

The issue here concerned the allegation that Defendants were reckless, and whether the

prior federal court findings collaterally estopped Jordan from relitigating that point.

3. The Recklessness Standard

{¶ 66} In Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, the

Supreme Court of Ohio discussed certain confusion that had arisen about its prior

definitions of the terms “wanton,” “willful,” and “reckless.” The court stressed that these

terms were not “equivalent standards.” Id. at ¶ 31. As here, Anderson involved claims

against political subdivision employees (firefighters), but also involved claims against their

employer, a city. Id. at ¶ 1-2. In that case, the trial court granted summary judgment to

the defendants, but the court of appeals reversed, finding that “the willful or wanton

misconduct referred to in R.C. 2744.02(B)(1)(b) is the functional equivalent of

recklessness.” Id. at ¶ 3. On further appeal, the Supreme Court of Ohio disagreed,

emphasizing, as noted, that these terms are different. Nonetheless, the court affirmed

the court of appeals and remanded the case so that the trial court could decide, based on

the court’s clarification, if the city had a defense to liability and if the firefighters should
 -24-

receive immunity. Id.1

{¶ 67} Anderson described recklessness as follows:

Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than

negligent conduct. Thompson [v. McNeill], 53 Ohio St.3d [102] at 104-105,

559 N.E.2d 705 [(1990)], adopting 2 Restatement of the Law 2d, Torts,

Section 500, at 587 (1965); see also Black's Law Dictionary 1298-1299 (8th

Ed.2004) (explaining that reckless conduct is characterized by a substantial

and unjustifiable risk of harm to others and a conscious disregard of or

indifference to the risk, but the actor does not desire harm).

(Emphasis sic.) Id. at ¶ 34.

{¶ 68} In its decision, the trial court did not cite Anderson, but it did state the correct

standard for reckless conduct. Decision (June 15, 2021), at p. 16. The court then

reiterated the correct standard while quoting from O'Toole v. Denihan, 118 Ohio St.3d

374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 73. Id. However, the court did include the

statement from O’Toole that “ ‘in the context of R.C. 2744.03(A)(6), recklessness is a

perverse disregard of a known risk.’ ” Id. This particular standard was not part of the

definition of “recklessness” in Anderson, and one court has concluded that it is not part of

1 After the remand and then a further appeal, the court of appeals ultimately concluded
that there were genuine issues of material fact concerning whether the firefighters’ actions
were wanton, and therefore negated the city’s defense, and about whether the firefighters
had acted recklessly for purposes of their own immunity. Anderson v. Massillon, 5th Dist.
Stark No. 2013CA00144, 2014-Ohio-2516, ¶ 59-60 and 69, appeal not accepted for
review, 140 Ohio St.3d 1521, 2014-Ohio-5251, 20 N.E.3d 730. The case was again
remanded to the trial court, and there is no further history.
 -25-

the definition. See Wilson v. Gregory, 3 F.4th 844, 861 (6th Cir.2021) (noting that

Anderson had “stepped away” from the perverse disregard terminology used in O’Toole

and other Ohio court cases). But see Meyers v. Cincinnati Bd. of Edn., 983 F.3d 873,

882 (6th Cir.2020) (applying the definition from O’Toole).

{¶ 69} On the other hand, lower courts in Ohio have continued to include “perverse

disregard of a known risk” or similar language. E.g., Fediaczko v. Mahoning Cty.

Children Servs., 7th Dist. Mahoning No. 11 MA 186, 2012-Ohio-6090, ¶ 21; Webber v.

Lazar, 2d Dist. Montgomery No. 26188, 2015-Ohio-1942, ¶ 13 (commenting that

“summary judgment remains appropriate where a defendant's conduct fails to

demonstrate a disposition to perversity”); Moore v. City of Cleveland, 2017-Ohio-1156,

87 N.E.3d 858, ¶ 42-43 (8th Dist.). And, in fact, the Supreme Court of Ohio itself has

continued to use this phrase when defining recklessness. Very recently, the court stated

that “[i]n applying R.C. 2744.03(A)(6)(b), this court has defined ‘recklessness’ as ‘a

perverse disregard of a known risk.’ ” A.J.R. v. Lute, 163 Ohio St.3d 172, 2020-Ohio-

5168, 168 N.E.3d 1157, ¶ 17, quoting O'Toole at paragraph three of the syllabus.

{¶ 70} In light of the above discussion, we are not convinced that Anderson either

specifically rejected the “perverse disregard” standard or that the trial court erred in

referencing it. Furthermore, even if we believed otherwise, we see no impact in the

context of the case before us.

{¶ 71} The trial court concluded that collateral estopped applied because the same

evidence would sustain both the state issue and the issue litigated in federal court. We

agree. The underlying facts are the same if the issue were phrased as whether the

officers acted recklessly or if it were phrased as whether the officers acted reasonably for
 -26-

purposes of qualified immunity. Notably, “collateral estoppel prohibits relitigation of “a

fact or a point that was actually and directly at issue in a previous action.” Fort Frye

Teachers Assn., 81 Ohio St.3d at 395, 692 N.E.2d 140.

{¶ 72} Here, the federal district court granted summary judgment to the police

officers on the basis of qualified immunity, finding that “their conduct was objectively

reasonable and did not violate clearly established law.” Jordan I, 440 F.Supp.3d at 857.

The court also stressed that “[t]he use of deadly force by a police officer is justified ‘when

the factual situation revealed a perceived serious threat of physical harm to the officer or

others in the area from the perspective of a reasonable officer.’ ” Id., quoting Sample v.

Bailey, 409 F.3d 689, 697 (6th Cir.2005). As indicated previously, the federal case was

resolved on summary judgment, and the parties had a full opportunity to litigate.

{¶ 73} On further appeal, the Sixth Circuit Court of Appeals affirmed the district

court’s summary judgment. In summarizing the facts, the court of appeals observed that:

During the early morning hours of October 20, 2017, Jamarco

McShann was asleep in the driver's seat of a locked, running car with his

right hand resting on a pistol in his lap and music blaring from the car stereo.

Just seconds after police officers roused him from his slumber, McShann

stopped complying with their orders that he keep his hands up and away

from the gun. He instead reached down, grabbed the gun, and swung it

towards the driver-side door, where two officers were positioned. Fearing

for their safety and that of their fellow officers, Officers Jerry Knight and

John Howard opened fire, shooting and killing McShann.

Jordan II, 987 F.3d at 539.
 -27-

{¶ 74} After discussing the evidence in detail, including the officers’ testimony and

Jordan’s expert report, the Sixth Circuit Court of Appeals stated that:

The record here demonstrates the defendant officers’ use of deadly

force was objectively reasonable. Three of the four officers surrounding

McShann's vehicle testified that when McShann woke, he was compliant or

mostly compliant with their order that he put his hands up. (Officer O'Neal

testified that he was not sure whether McShann put his hands up.) But

then, after looking back and forth at the officers surrounding the vehicle for

a few seconds, all four officers testified that McShann grabbed his gun. At

this point, Officer Howard perceived a serious and deadly threat to himself

and his fellow officers and took aim at McShann's “center mass”—

necessarily taking his vision away from the gun itself. While that process

was playing out, the other three officers agree that McShann “swung” the

gun towards Officer Knight at the driver-side window. Officer Knight

testified that he feared for his safety once McShann swung the gun towards

him. At that point, both Officers Knight and Howard used deadly force.

Given these unrebutted facts, we conclude that both Officers Howard

and Knight acted reasonably to stop a serious threat of deadly force, and

the district court correctly granted them qualified immunity. In other words,

when an initially compliant suspect stops following officer commands and

instead grabs a readily accessible firearm, an officer “need not wait for [the]

suspect to open fire on him ... before the officer may fire back.”

Greathouse v. Couch, 433 F. App'x 370, 373 (6th Cir. 2011); cf. Mullins v.
 -28-

Cyranek, 805 F.3d 760, 768 (6th Cir. 2015) (affirming grant of qualified

immunity where officer used deadly force in response to a suspect pulling

out a previously concealed weapon and throwing it over the officer's

shoulder, because the suspect earlier “had his finger on the trigger of a gun,

and at that time, he posed a serious threat to [the officer] and the general

public”); id. (“This is not a case where a jury could conclude that [the police

officer] was not in any danger in the first place.” (internal quotation marks,

brackets, and citation omitted)).

Jordan II, 987 F.3d at 543-544.

{¶ 75} In view of the findings in the federal district and appellate courts that the

officers’ use of deadly force (resulting in McShann’s death) was reasonable, and that they

did not violate established law, it would be factually and logically inconsistent to conclude

in this action that the officers were reckless in causing McShann’s death and, therefore,

were not entitled to immunity under R.C. 2744.03(A)(6). Accordingly, the trial court did

not err in applying collateral estoppel to the wrongful death claim brought by Jordan. As

a result, the first assignment of error is without merit and is overruled.

IV. Conclusion

{¶ 76} Both of Jordan’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

DONOVAN, J. and HALL, J., concur.
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Copies sent to:

Jacqueline Green
M. Caroline Hyatt
Sarah Gelsomino
Kelly M. Schroeder
Hon. Mary Katherine Huffman