[Cite as Everhart v. Merrick Mfg. II, L.L.C., 2022-Ohio-4626.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

DARRYL EVERHART

Plaintiff-Appellant

v.

MERRICK MANUFACTURING II LLC, 

et al.

Defendants-Appellees

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Appellate Case No. 29520

Trial Court Case No. 2019-CV-01730

(Civil Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 22nd day of December, 2022.

. . . . . . . . . . . 

DAVID R. GRANT, Atty. Reg. No. 0065436 and FRANK L. GALLUCCI, III, Atty. Reg. No. 

0072680, 55 Public Square, Suite 2222, Cleveland, Ohio 44113

PAUL W. FLOWERS, Atty. Reg. No. 0046625, LOUIS E. GRUBE, Atty. Reg. No. 0091337 

and MELISSA A. GHRIST, Atty. Reg. No. 0096882, Terminal Tower, 40th Floor, 50 Public 

Square, Cleveland, Ohio 44113

JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400, 

Dayton, Ohio 45402

Attorneys for Plaintiff-Appellant, Darryl Everhart

 

DANIEL F. GOURASH, Atty. Reg. No. 0032413 and JEFFREY S. MOELLER, Atty. Reg. 

No. 0074512, 26600 Detroit Road, Suite 300, Westlake, Ohio 44145
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Attorneys for Defendant-Appellee, StampTech, Inc.

PATRICIA J. TROMBETTA, Atty. Reg. No. 0005451 and THOMAS F. GLASSMAN, Atty. 

Reg. No. 0061466, 312 Walnut Street, Suite 2530, Cincinnati, Ohio 45202

Attorney for Defendant-Appellee, Bill’s Machine Service, Inc.

CHRISTOPHER C. KOEHLER, Atty. Reg. No. 0059384 and LINDSEY CARR SIEGLER, 

Atty. Reg. No. 0074182, 200 Public Square, Suite 3000, Cleveland, Ohio 44114

Attorneys for Defendants-Appellees, Nidec Minster Corp. and The Minster 

Machine Co.

DOUGLAS S. JENKS, Atty. Reg. No. 0079647 and DAVID M. RICKERT, Atty. Reg. No. 

0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402

Attorneys for Defendants-Appellees, Merrick Manufacturing II LLC and Stephen 

Smith

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

WELBAUM, J.

{¶ 1} Plaintiff-Appellant, Darryl Everhart, appeals from trial court judgments 

dismissing his personal injury action against the following Defendants-Appellees:

StampTech, Inc. (“StampTech”); Nidec Minster Corporation and Minster Machine 

Company (collectively, “Minster”), and Bill’s Machine Service, Inc. (“Bill’s Machine”).1 

According to Everhart, the trial court erred in dismissing his claims under Civ.R. 12(B)(1) 

based on lack of subject matter jurisdiction. Everhart further contends that the court 

abused its discretion by failing to let him conduct discovery into fact-intensive issues 

raised by the Appellees’ motions to dismiss.

{¶ 2} For the reasons discussed below, we conclude that the trial court erred in 

dismissing the case under Civ.R. 12(B)(1) for lack of subject matter jurisdiction. The 

court’s decision was based on the statute of repose in R.C. 2305.10(C), which bars 

1 We will refer to these defendants collectively as “Appellees,” because they generally 

advance the same arguments in this appeal.
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product liability claims that are not filed within the time specified in the statute. However, 

this statute does not involve subject matter jurisdiction, which pertains to the court’s power 

to entertain and adjudicate a particular class of cases. Instead, application of the repose 

statute involves the rights of the parties in a particular case. Furthermore, R.C. 

2305.10(C) does not explicitly remove the common pleas court’s jurisdiction to hear 

cases. 

{¶ 3} Instead of focusing on subject matter jurisdiction, the trial court should have 

considered whether the complaint failed to state a claim. Alternatively, if the court were 

going to consider evidence outside the complaint (as it did here), it should have allowed 

Everhart to conduct discovery. Failure to do so was an abuse of discretion. 

Accordingly, the judgment of the trial court will be reversed, and this cause will be 

remanded for further proceedings. 

I. Facts and Course of Proceedings

{¶ 4} On April 17, 2019, Everhart filed a personal injury complaint against the 

following parties: Merrick Manufacturing II, LLC (“Merrick II”); Stephen Smith (an owner, 

officer, manager, and/or owner of Merrick II); StampTech; Minster; Merrick Manufacturing 

LLC (“Merrick I”) and Bill’s Machine). According to the complaint, Everhart was injured 

on April 20, 2017, while operating a press identified as a Minster 60 ton OBI press 

(“Press”). Everhart was an employee of Merrick II and was operating the Press in 

“single” mode rather than “continuous” mode. When Everhart reached into the Press 

with his right hand to retrieve a finished piece, the Press suddenly started operating 
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automatically or continuously and caused severe damage to Everhart’s right hand. 

{¶ 5} The complaint alleged that the Press was not properly equipped with point of 

operation guarding, in violation of 29 C.F.R. 1910.212(a)(3)(ii) and Ohio Adm.Code 4123-

1-5-10(D), and also failed to comply with safety requirements in 29 C.F.R. 1910.217, 

which included: “(a) having a control system with control reliability; (b) having a brake 

system monitor; (c) conducting periodic and regular inspections, testing, maintenance 

and repair of all parts, auxiliary equipment and safeguards including the clutch/brake 

mechanism, antirepeat feature, and single-stroke mechanism; and (d) maintaining a 

certified record of each inspection, each maintenance and each repair task performed.” 

Complaint, ¶ 16.

{¶ 6} The complaint alleged several bases of liability, including: (1) a statutory 

workplace intentional tort claim against Merrick II; (2) a negligence claim against 

StampTech, Minster, Merrick I, and Bill’s Machine; (3) a product liability claim against 

StampTech, Minster, and Bill’s Machine as “manufacturers” under R.C. 2307.71(A)(9); 

(4) an alternate product liability claim against StampTech, Minster, and Bill’s Machine as 

“suppliers” as defined in R.C. 2307.71(A)(15)(a); and (5) a “Common Law Blankenship;

Fyfe Co-employee Intentional Tort” claim against Smith. Complaint, ¶ 18-81.

{¶ 7} On May 7, 2019, StampTech filed an answer and raised various defenses, 

including that the complaint failed to state a claim and was barred by the statute of repose 

in R.C. 2305.10(C)(1). StampTech Answer at ¶ 22 and 24. Bill’s Mechanic then filed 

an answer on May 9, 2019, and included various affirmative defenses. However, Bill’s 

Mechanic, while raising failure to state a claim, did not raise either the statute of limitations 
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or the statute of repose as defenses. 

{¶ 8} On May 16, 2019, Minster filed a motion to dismiss based on lack of 

jurisdiction under Civ.R. 12(B)(1). Minster’s motion was based on the ten-year statute 

of repose in R.C. 2305.10(C)(1) and the fact that it had manufactured and sold the Press 

more than 40 years earlier. Minster attached an affidavit indicating that Borg & Beck, a 

division of Borg-Warner Corporation in Sterling Heights, Michigan, ordered three presses, 

including the Press, and that an order was generated on June 11, 1974. Affidavit of 

Russell Bensman, attached as Ex. 1 (“Bensman Aff.”), ¶ 2-3. Nidec Minster then 

manufactured and shipped the Press to the original purchaser, Borg & Beck, on January 

8, 1975. Id. at ¶ 4-5. The original order and packing list were attached to the affidavit

as Exs. 1-A and 1-B.

{¶ 9} Subsequently, on May 17, 2019, Merrick II and Smith filed an answer, 

denying liability and raising affirmative defenses of failure to state a claim and the bar of 

the statute of limitations or repose. Merrick II and Smith Answer, ¶ 83 and 95. 

{¶ 10} Everhart then asked for and received an extension of time until June 13, 

2019, to respond to Minster’s motion to dismiss. On June 10, 2019, StampTech also 

filed a motion to dismiss based on lack of subject matter jurisdiction under Civ.R. 12(B)(1). 

StampTech’s motion was based on the statute of repose in R.C. 2305.10(C) and the fact 

that Everhart’s purported negligence claim was actually a product liability claim that had 

been abrogated by the Ohio Products Liability Act (“OPLA”).

{¶ 11} The affidavit and exhibits attached to StampTech’s motion indicated that 

StampTech had purchased the Press at auction on April 10, 2012, for $10,350. After 
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purchasing the Press, StampTech inspected it and “performed certain minor repairs, 

including inspection of the bearing clearance, lubrication, and electric system, 

repair/replacement of the clutch and brake with new OEM parts from Defendant Nidec 

Minster Corporation, [and] installation of Ross dual ergonomic palm buttons and of a new 

Cisco time based brake monitor.” Tony Amato Affidavit (“Amato Aff.”), ¶ 5. In addition, 

the Press was “cleaned, painted and inspected under power.” Id. According to Amato, 

“[a]ll functions of the Press were found to be performing properly. The Press was not 

substantially rebuilt, remanufactured, or reconditioned.” Id.

{¶ 12} Following these repairs, StampTech sold the Press to Merrick “as is,” with 

a 30-day “Used Equipment Warranty” on April 3, 2013. Id. at ¶ 7-8. Subsequently, 

StampTech credited Merrick for repairs that Bill’s Machine and others made around June 

2013. Id. at ¶ 8 and Ex. A-4 attached to the Amato Aff.

{¶ 13} On June 13, 2019, Everhart filed a consolidated response to the motions to 

dismiss as well as a motion for a 120-day extension of time to conduct discovery. In 

addition to arguing that Civ. R. 12(B)(1) was not the appropriate vehicle, Everhart argued 

that even if a potential subject matter jurisdiction argument had been raised, he should 

be able to depose the witnesses who executed the affidavits and to review all relevant 

records. Plaintiffs’ Consolidated Memorandum in Opposition to Motion to Dismiss (June 

13, 2019), p. 8. Minster filed its reply memorandum in support of its motion to dismiss 

on June 26, 2019, and StampTech filed its reply memorandum the following day. 

Everhart then submitted two notices of supplemental authority, to which Minster and 

StampTech responded. 
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{¶ 14} On August 29, 2019, the trial court filed a decision sustaining the motions 

to dismiss filed by Minster and StampTech. The court concluded that it lacked subject 

matter jurisdiction because the statute of repose in R.C. 2305.10(C)(1) expired in January 

1985, and the products liability claim against these parties never existed. Decision, 

Order and Entry (Aug. 29, 2019), p. 4. The court further found that because the cause 

of action did not exist, allowing discovery would not remedy the issue. Id. Finally, the 

court held that because Minster and StampTech were being sued as “manufacturers” as 

defined in R.C. 2307.71(A)(9), the OPLA had abrogated any negligence claims against 

these parties. Id. at p. 4-5. The court’s order was interlocutory, because claims 

against the other parties remained pending.

{¶ 15} On September 12, 2019, Everhart filed a motion asking the court to 

reconsider its decision or to include a Civ.R. 54(B) certification. After Minster and 

StampTech responded, Everhart filed a reply memorandum. On October 1, 2019, the 

trial court overruled the motion for reconsideration and denied the Civ.R. 54(B) request.

{¶ 16} On October 8, 2019, Bill’s Machine also filed a motion to dismiss under 

Civ.R. 12(B)(1). This motion relied on the prior motions to dismiss that had been filed 

and on the trial court’s dismissal of the claims against Minster and StampTech. In 

responding to the motion, Everhart first acknowledged that the trial court’s two prior 

rulings “would seem to require this latest Motion to Dismiss to be granted as well.” 

Plaintiff’s Memorandum in Opposition to Defendant Bill’s Machine Service Inc.’s Motion 

to Dismiss (Oct. 21, 2019), p. 1. However, Everhart followed this by stating that:

The upshot of these decisions appears to be that under R.C. 2305.10(C)(1) 
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and R.C. 2307.71(B), no common pleas court can ever acquire subject 

matter jurisdiction over a products liability or negligence claim involving a 

product that was delivered to its first purchaser or lessee more than ten 

years earlier, even when there are allegations of negligent post-production 

inspections, repairs, and modifications. In order to preserve his positions 

for appeal, Plaintiff is nevertheless required to furnish the following 

response.

Id. 

{¶ 17} In addition to reiterating his previous position on the inapplicability of Civ.R. 

12(B)(1), Everhart noted the allegations in the complaint that Bill’s Machine had been

negligent in performing actions with respect to the machinery between 2013 and the 2017 

injury. Id. at p. 2. Everhart again asked the court to allow time for conducting discovery 

concerning the factual matters addressed in the motions. Id. at p. 10.

{¶ 18} On October 22, 2019, Bill’s Machine filed a reply memorandum 

incorporating the previous replies of Minster and StampTech in support of their motions 

to dismiss. Everhart then, on October 23, 2019, filed notices indicating he had served a 

first set of interrogatories and a request for production of documents on Merrick II and 

Bill’s Machine. However, on October 30, 2019, the trial court filed a decision overruling 

in part and sustaining in part Bill’s Machines’ motion to dismiss. As with Minster and 

StampTech, the court found that no products liability claim existed due to the statute of 

repose and denied Everhart’s motion to conduct discovery. Decision, Order and Entry 

(Oct. 30, 2019), p. 2-4. Nonetheless, the court distinguished the negligence claim 
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against Bill’s Machine from the other claims prohibited by the OPLA, because the alleged 

negligence might have arisen from separate repairs that Bill’s Machine had performed. 

Id. at p. 4.

{¶ 19} On November 6, 2019, Bill’s Machine filed a request for reconsideration of 

the court’s decision. In the motion, Bill’s Machine argued that the repairs it had 

performed, like StampTech’s, had been minimal and had not rebuilt, remanufactured, or 

reconditioned the Press. On November 20, 2019, Bill’s Machine attached an affidavit 

from Bill Purtee, the employee who had conducted the repairs to the Press. Purtee 

Affidavit (“Purtee Aff.”), ¶ 2. Purtee stated that he did only minor repairs and did not 

“substantially rebuild, remanufacture, or recondition the press.” Id. at ¶ 6. In addition, 

Purtee attached some invoices showing a total of about $2,500 in repairs and estimated 

repairs. Id. at ¶ 4 and Ex. A attached to the Purtee Aff.

{¶ 20} On November 20, 2019, Everhart responded to the reconsideration motion, 

stating, among other things, that “[i]t certainly does appear that [Bill’s Machine’s] postmanufacturing involvement with the press is indistinguishable [from the involvement of 

Minster and StampTech].” Plaintiff’s Memorandum in Opposition to Defendant Bill’s 

Machine Service, Inc.’s Motion for Reconsideration, p. 2. On the other hand, Everhart 

stated that “[b]ecause Plaintiff has not yet concluded his discovery, the full nature and 

extent of these Defendants’ repairs and modifications has not been determined. Plaintiff 

has no way of knowing with any confidence whether and how these Defendants caused 

or contributed to the defect and hazards in the machinery that cost him his right hand.” 

Id. at p. 3. 
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{¶ 21} Everhart also said it agreed that the court should reconsider its October 30, 

2019 decision as to Bill’s Machine, but asked the court to reaffirm its decision that 

negligence claims could be pursued if they fell outside the OPLA. Id. at p. 3-4. 

{¶ 22} Subsequently, on December 3, 2019, Everhart asked to supplement his 

memorandum opposing reconsideration. Everhart noted that Purtee’s affidavit had been 

submitted the same day as Everhart’s response to the reconsideration motion and had 

prevented Everhart from responding to the new evidence.2 Everhart contended that the 

affidavit had changed nothing from the perspective that Minster, StampTech, and Bill’s 

Machine had all claimed that their efforts in servicing or repairing the Press were minimal. 

However, Everhart stressed that he had not been able to investigate and verify their “selfserving assurances.” Motion for Leave to Supplement (Dec. 3, 2019), p. 1. 

{¶ 23} The trial court never ruled on Everhart’s motion for leave to supplement,

and the court did not consider it in ruling on the motion for reconsideration. Decision, 

Order and Entry (Dec. 16, 2019), p. 1. In its decision, the court sustained the motion 

for reconsideration and dismissed the negligence claims against Bill’s Machine. In 

particular, the court focused on Everhart’s agreement that “ ‘there is no logical reason for 

Defendant Bill’s Machine to be treated any differently than Defendants Minster and 

StampTech for the purposes of [Plaintiff’s common law negligence claims].’ ” Id. at p. 

3, quoting Everhart’s Memorandum in Opposition to Defendant Bill’s Machine Service, 

2 According to the record, Purtee’s affidavit was filed around 3:16 p.m. on November 20, 

2019, and Everhart’s memorandum opposing reconsideration was filed a little more than 

one hour later, at around 4:20 p.m. on November 20, 2019. From the content of 

Everhart’s memorandum, it appears that Everhart was not aware that Purtee’s affidavit 

had been filed. 
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Inc.’s Motion for Reconsideration, at p. 4. At that time, Merrick I, Merrick II, and Smith 

still remained as parties.

{¶ 24} On December 18, 2019, the Ohio Bureau of Workers’ Compensation 

(“BWC”) filed a motion to intervene to assert its right of recovery. Subsequently, after 

holding a scheduling conference, the court filed a final pretrial order on December 23, 

2019, setting discovery deadlines and an October 26, 2020 trial date. On January 15, 

2020, the court granted the BWC’s motion to intervene, and the BWC filed its complaint 

on January 23, 2020. After receiving permission from the court, Everhart filed a first 

amended complaint on February 10, 2020, asserting a cross-claim against the BWC.

{¶ 25} The court later vacated the scheduling order due to Covid-19, and on 

November 10, 2020, set a new trial date for June 27, 2022. On April 22, 2022, Everhart 

voluntarily dismissed its claims against Merrick II and Smith only, with prejudice. In 

addition, on May 23, 2022, Everhart dismissed his claims against Merrick Manufacturing 

LLC d/b/a/ or a/k/a Merrick Manufacturing (Merrick I) without prejudice. The same day, 

Everhart filed a notice of appeal from the court’s orders of August 29, 2019; October 1, 

2019; October 30, 2019; and December 16, 2019. The appeal was docketed as 

Montgomery App. No. 29481.

{¶ 26} We then filed a show cause order, noting that we appeared to lack 

jurisdiction over the case due to the pending amended complaint and cross-claim. See 

Everhart v. Merrick Mfg. II, LLC, 2d Dist. No. 29481 (May 27, 2022), p. 2. We gave 

Everhart 14 days to respond to the order. Id.

{¶ 27} On June 10, 2022, Everhart notified us that the only remaining claims were 
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those of the BWC against Everhart and his cross-claim against the BWC. Everhart 

further said that he and the BWC had agreed to jointly dismiss those remaining claims; 

he, therefore, asked us to treat his notice of appeal as premature. We found that we 

lacked jurisdiction over the appeal and dismissed it. See Everhart v. Merrick Mfg. II, 

LLC, 2d Dist. No. 29481 (Decision & Final Judgment Entry, June 28, 2022). 

{¶ 28} On July 1, 2022, the BWC and Everhart dismissed their claims against each 

other, without prejudice. Everhart then appealed on July 5, 2022, from the above-listed 

orders of the trial court, and the appeal was docketed as Montgomery App. No. 29520 

(the current appeal).

II. Dismissal under Civ.R. 12(B)(1)

{¶ 29} Everhart’s first assignment of error states that:

The Trial Court Erred as a Matter of Law by Dismissing PlaintiffAppellant’s Statutory Products Liability and Common Law Negligence 

Claims for Lack of Subject Matter Jurisdiction Under Authority of Civ.R. 

12(B)(1).

{¶ 30} Under this assignment of error, Everhart first contends that the trial court 

erred in dismissing his product liability claims under Civ.R. 12(B)(1) for lack of subject 

matter jurisdiction. According to Everhart, common pleas courts have broad jurisdiction, 

and the statute of repose in R.C. 2305.10(C)(1) does not divest these courts of jurisdiction 

over civil actions. Before we address this point, we will briefly discuss the standards that 

apply to dismissals under Civ.R. 12(B)(1).
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A. Civ.R. 12(B)(1) Dismissals.

{¶ 31} Civ.R. 12(B)(1) allows parties to move for dismissal based on “lack of 

jurisdiction over the subject matter.” “The standard of review for a dismissal pursuant to 

Civ.R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised 

in the complaint.” State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 

(1989), citing Avco Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67, 520 N.E.2d 

1378 (10th Dist.1987). Under Civ.R. 12(B)(1), a court may “consider outside matter 

attached to a motion to dismiss for lack of jurisdiction without converting it into a motion 

for summary judgment if such material is pertinent to that inquiry.” Southgate Dev. Corp. 

v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 214, 358 N.E.2d 526 (1976). 

{¶ 32} “Appellate review of dismissals under Civ.R. 12(B)(1) is de novo.” Cook v. 

Pitter Patter Learning Ctr., LLC, 2d Dist. Montgomery No. 29260, 2022-Ohio-961, ¶ 17, 

citing State ex rel. Ohio Civ. Serv. Emps. Assn. v. State of Ohio, 146 Ohio St.3d 315, 

2016-Ohio-478, 56 N.E.3d 913, ¶ 12. “This means we apply the same standards as the 

trial court.” Id., citing Carter v. Trotwood-Madison City Bd. of Edn., 181 Ohio App.3d 

764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 26 (2d Dist.).

B. Jurisdiction over Product Liability Claims

{¶ 33} As noted, Everhart contends that the trial court erred in relying on Civ.R. 

12(B)(1) because Ohio common pleas courts have broad subject matter jurisdiction, and 

R.C. 2305.10(C)(1) does not expressly restrict the court’s subject matter jurisdiction. In 
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contrast, Appellees argue that R.C. 2305.10(C)(1) deprives trial courts of subject matter 

jurisdiction because as a statute of repose, a party’s product liability claim is deemed to 

have never existed if it is not brought within the time period outlined in the statute. 

According to Appellees, this differs from a statute of limitations, which is an affirmative 

defense. This is the position the trial court adopted. Neither the trial court nor any party 

cited Ohio decisions that are specifically on point. 

{¶ 34} The Supreme Court of Ohio has said on various occasions that “jurisdiction 

is a vague term, ‘ “a word of many, too many, meanings.” ’ ” Cheap Escape Co. v. 

Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 5, quoting Steel 

Co. v. Citizens for a Better Environment, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 

210 (1988). (Other citation omitted.) Accord Ostanek v. Ostanek, 166 Ohio St.3d 1, 

2021-Ohio-2319, 181 N.E.3d 1162, ¶ 20. “The general term ‘jurisdiction’ can be used to 

connote several distinct concepts, including jurisdiction over the subject matter, 

jurisdiction over the person, and jurisdiction over a particular case.” Bank of Am., N.A. 

v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18, citing Pratts v. 

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12. In Kuchta, the 

court stressed that “[t]he often unspecified use of this polysemic word can lead to 

confusion and has repeatedly required clarification as to which type of ‘jurisdiction’ is 

applicable in various legal analyses.” (Citations omitted.) Id.

{¶ 35} The court also noted in Kuchta that “[s]ubject-matter jurisdiction is the power 

of a court to entertain and adjudicate a particular class of cases. * * * A court's subjectmatter jurisdiction is determined without regard to the rights of the individual parties 
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involved in a particular case.” (Citations omitted.) Id. at ¶ 19. See also Ostanek at 

¶ 21. Instead of relating to the parties’ rights, “ ‘the focus is on whether the forum itself 

is competent to hear the controversy.’ ” Corder v. Ohio Edison Co., 162 Ohio St.3d 639, 

2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14, quoting State v. Harper, 160 Ohio St.3d 480, 

2020-Ohio-2913, 159 N.E.3d 248, ¶ 23.

{¶ 36} In contrast, “[a] court's jurisdiction over a particular case refers to the court's 

authority to proceed or rule on a case that is within the court's subject-matter jurisdiction.” 

Kuchta at ¶ 19, citing Pratts at ¶ 12. “This latter jurisdictional category involves 

consideration of the rights of the parties.” Id. 

{¶ 37} “Ohio's common pleas courts are endowed with ‘original jurisdiction over all 

justiciable matters * * * as may be provided by law.’ ” Kuchta at ¶ 20, quoting Article IV, 

Section 4(B), Ohio Constitution. “Jurisdiction has been ‘provided by law’ in R.C. 

2305.01, which states that courts of common pleas have ‘original jurisdiction in all civil 

cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of 

county courts.’ ” Id. There is no question here that Everhart’s claims exceed that 

amount. 

{¶ 38} In Kuchta, the court stressed that it had “long held that the court of common 

pleas is a court of general jurisdiction, with subject-matter jurisdiction that extends to ‘all 

matters at law and in equity that are not denied to it.’ ” Id. at ¶ 19, quoting Saxton v. 

Seiberling, 48 Ohio St. 554, 558-559, 29 N.E. 179 (1891). “Because of R.C. 2305.01's 

general grant of jurisdiction, a court of common pleas has jurisdiction over any case in 

which the matter in controversy exceeds the jurisdictional limit unless some statute takes 
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that jurisdiction away.” Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 

296, 2019-Ohio-2845, 136 N.E.3d 436, ¶ 9. The court further stressed in Ruehlman that 

“when we have found that a court of common pleas patently and unambiguously lacks 

jurisdiction, it is almost always because a statute explicitly removed that jurisdiction.” Id. 

{¶ 39} According to Appellees, R.C. 2305.10(C)(1) qualifies as such a statute by 

taking away the trial court’s jurisdiction. R.C. 2305.10(C)(1) provides (with exceptions 

not applicable here) that:

[N]o cause of action based on a product liability claim shall accrue against 

the manufacturer or supplier of a product later than ten years from the date 

that the product was delivered to its first purchaser or first lessee who was 

not engaged in a business in which the product was used as a component 

in the production, construction, creation, assembly, or rebuilding of another 

product.

{¶ 40} We disagree that R.C. 2305.10(C)(1) explicitly takes away a trial court’s 

jurisdiction. In fact, this statute says nothing about jurisdiction, nor does it state that 

exclusive jurisdiction lies with other tribunals, offices, or agencies. The Supreme Court 

of Ohio has stressed that, generally, an explicit removal of jurisdiction “occurs when the 

General Assembly confers exclusive jurisdiction over a specific subject matter on a 

particular tribunal, office, or agency.” Ostanek, 166 Ohio St.3d 1, 2021-Ohio-2319, 181 

N.E.3d 1162, at ¶ 29. As one example, the court noted that the General Assembly had 

“ ‘vested the Public Utilities Commission of Ohio (“PUCO”) with exclusive jurisdiction over 

most matters relating to public utilities, including the rates charged and the services 
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provided.’ ” Id., quoting Corder, 162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180, 

¶ 2. Other examples cited were R.C. 935.20(A), which gives the Ohio Department of 

Agriculture “exclusive authority to order the quarantine or transfer of dangerous wild 

animals,” and R.C. Chapter 4117, under which “the State Employment Relations Board 

has exclusive jurisdiction over charges of unfair labor practices.” Id., citing State ex rel. 

Dir., Ohio Dept. of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69 

N.E.3d 636, ¶ 25 and 29, and State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-

Ohio-2506, 789 N.E.2d 203, ¶ 16 and 21. 

{¶ 41} We further disagree that distinctions between statutes of limitations and 

statutes of repose operate to deprive the common pleas court of subject matter 

jurisdiction. It is true that the Supreme Court of Ohio has said that “ ‘[u]nlike a true statute 

of limitations, which limits the time in which a plaintiff may bring suit after the cause of 

action accrues, a statute of repose * * * potentially bars a plaintiff's suit before the cause 

of action arises.’ ” (Emphasis sic.) Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 

2008-Ohio-546, 883 N.E.2d 377, ¶ 112, quoting Sedar v. Knowlton Constr. Co., 49 Ohio 

St.3d 193, 195, 199, 551 N.E.2d 938 (1990).

3

“Thus, the statute can prevent claims from 

ever vesting if the product that allegedly caused an injury was delivered to an end user 

more than ten years before the injury occurred. * * * Because such an injured party's 

cause of action never accrues against the manufacturer or supplier of the product, it never 

3 The Supreme Court of Ohio overruled Sedar on other grounds in Brennaman v. R.M.I. 

Co., 70 Ohio St.3d 460, 639 N.E.2d 425 (1994). Later, the court limited Brennaman “to 

its particular holding that former R.C. 2305.131, the prior statute of repose for 

improvements to real property, was unconstitutional.” Groch, 117 Ohio St.3d 192, 2008-

Ohio-546, 883 N.E.2d 377, at ¶ 146 (instead approving the prior reasoning and analysis 

in Sedar). 
-18-

becomes a vested right.” Id. at ¶ 149.

{¶ 42} Nonetheless, even if the right is not “vested,” the issue is between the 

parties and involves whether the plaintiff’s complaint fails to state a claim. Civ.R. 

12(B)(6), therefore, would be the applicable provision, and if the matter could not be 

resolved by accepting the complaint’s allegations as true, then the court should allow 

discovery and decide the matter on summary judgment. See Rose v. Primc, 2d Dist. 

Montgomery No. 29025, 2021-Ohio-3054, ¶ 64-65 (rejecting plaintiff’s contention that the 

trial court erred in considering evidence beyond the complaint in deciding a Civ.R. 

12(B)(6) motion to dismiss; instead, the court properly converted the motion to dismiss 

into a summary judgment motion and gave the parties’ notice of its intention). See also

Grayson v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 110684, 2022-Ohio-1668, 

¶ 6-7 (stating that summary judgment is a better procedure than Civ.R. 12(B)(6) for 

addressing affirmative defenses like the statute of repose and the statute of limitations). 

{¶ 43} As noted, the parties have not cited (and we have not found) Ohio authority 

specifically ruling on this issue in the context of R.C. 2305.10(C)(1). However, Ohio 

courts have said that “[l]ike the expiration of a statute of limitations, the expiration of a 

statute of repose is also an affirmative defense. * * * Thus, it follows that the expiration of 

a statute of repose also does not deprive a court of jurisdiction.” Adams v. Durrani, 2022-

Ohio-60, 183 N.E.3d 560, ¶ 96 (1st Dist.), citing Groch, 117 Ohio St.3d 192, 237, 2008-

Ohio-546, 883 N.E.2d 377, at ¶ 251 (Pfeifer, J., concurring in part and dissenting in part). 

{¶ 44} In Adams, the court held that the defendants had waived the application of 

the statute of repose in R.C. 2305.113 because they had failed to raise it during pretrial 
-19-

proceedings. Id. at ¶ 96-98. See also McQuade v. Mayfield Clinic, Inc., 2022-Ohio-785, 

186 N.E.3d 278, ¶ 14 (1st Dist.) (referring to the statute of repose for medical claims in 

R.C. 2305.113 as an “affirmative defense”); Minaya v. NVR, Inc., 2017-Ohio-9019, 103 

N.E.3d 160, ¶ 6 (8th Dist.) (referencing an “exception to the affirmative defense of the 

statute of repose” in R.C. 2305.131(A), which has a 10-year bar for claims based on 

improvements to real property); Fazio v. Gruttadauria, 8th Dist. Cuyahoga No. 90562, 

2008-Ohio-4586, ¶ 23 (defendant waived affirmative defenses of statute of limitations and 

statute of repose by failing to answer the complaint and assert them); and Hetzer-Young 

v. Precision Airmotive Corp., 184 Ohio App.3d 516, 2009-Ohio-5365, 921 N.E.2d 683, 

¶ 24-32 (8th Dist.) (General Aviation Revitalization Act of 1994, 49 U.S.C. 40101, as a 

statue of repose, “acts as an affirmative defense and ‘creates an explicit statutory right 

not to stand trial”).

{¶ 45} Minster has argued that case law involving R.C. 2305.113 is distinguishable 

because this statute says that “no action * * * shall be commenced,” while R.C. 

2305.10(C)(1) states that “no cause of action * * * shall accrue.” Minster Brief, p. 11. In 

addition, StampTech focuses on the fact that R.C. 2305.10(C) is a “true statute of repose” 

and is jurisdictional because it prevents a cause of action from ever accruing. 

StampTech Brief, p. 12-13.

{¶ 46} However, the Supreme Court of Ohio has not recognized such distinctions

and has classified both R.C. 2305.113 and R.C. 2305.131 as “true” statutes of repose. 

E.g., Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 

974, ¶ 1 (stating that “R.C. 2305.113(C) is a true statute of repose that applies to both 
-20-

vested and nonvested claims”); New Riegel Local School Dist. Bd. of Edn. v. Buehrer 

Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, 

¶ 43 (holding “[i]t is manifest that the General Assembly understood R.C. 2305.131 to be 

a true statute of repose, i.e., one that bars accrued claims as well as those that have not 

yet vested”).

{¶ 47} Even if this were otherwise, R.C. 2305.131(A)(1), in fact, has language that 

is identical in pertinent part to R.C. 2305.10(C), in stating that “no cause of action * * * 

shall accrue later than ten years from the date of substantial completion of such 

improvement [to real property].” R.C. 2305.131(C) also specifically refers to the defense

in “Division (A)(1)” as an “affirmative defense” that is not available in situations where a 

defendant has engaged in fraud. See also Furlan v. Troiano Homes, Inc., 8th Dist. 

Cuyahoga No. 49430, 1985 WL 8612, *1 (Sept. 19, 1985) (defendant did not waive 

reliance on R.C. 2305.131 by failing to specifically list it as an affirmative defense; statute 

of limitations was raised, and Supreme Court of Ohio had “referred to statutes of 

limitations as statutes of repose”).

{¶ 48} In Lawson v. Valve-Trol Co., 81 Ohio App.3d 1, 610 N.E.2d 425 (9th 

Dist.1991), the court discussed an applicable Indiana statute of repose and noted that a 

statute of repose is not explicitly listed as an affirmative defense in Civ.R. 8. Id. at 5. 

Given the nature of statutes of repose (which prevent causes of action from arising), the 

court felt the defendant sufficiently raised the matter by including the defense of failure to 

state a claim in its answer. As a result, the defendant was not prohibited from later

raising the issue in a summary judgment motion. Id. at 6. 
-21-

{¶ 49} We also note that some of Appellees’ assertions are simply incorrect. For 

example, at p. 12 of its brief, StampTech cites Krohnengold v. New York Life Ins. Co., 

2022 WL 3227812, *6 (S.D.N.Y. Aug. 10, 2022), for the proposition that a “six-year 

Federal statutory time limit on breach of fiduciary duty suits is a true statute of repose, 

and hence can be raised via a motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 

12(B)(1).” 

{¶ 50} Krohnengold involved two kinds of motions to dismiss: (1) dismissal of one 

claim based on lack of Article III standing, brought under Fed.Civ.R.P. 12(b)(1); and (2)

dismissal of all five of the plaintiffs’ claims for failure to state a claim, brought under 

Fed.Civ.R.P. 12(b)(6). Id. at *3. The standing issue, however, did not relate to the 

statute of repose. Instead, the statute of repose issue was decided based on failure to 

state a claim and from reviewing the allegations in the amended complaint. Id. at *6-7.

{¶ 51} It is true that the court, in addressing “repose,” remarked that, unlike the 

statute of limitations, the statute of repose in 29 U.S.C. 1113(1) was not an “affirmative 

defense” and that the plaintiffs had “the burden of demonstrating their claims are not 

barred by the six-year limitations period.” However, even if we imposed such a burden 

on Everhart here, the trial court failed to let Everhart conduct any discovery. In short, 

this case could have been decided based on Civ.R. 12(B)(6), rather than on the lack of 

subject matter jurisdiction, or the court could have let Everhart conduct discovery to 

explore the factual assertions that Appellees made. Instead, the court prevented 

Everhart from conducting any discovery. 

{¶ 52} We also note that the wording of 29 U.S.C. 1113(1) states that “[n]o action 
-22-

may be commenced” after the time periods that are listed. This is similar to the wording 

in R.C. 2305.113(C) and again indicates that Minster’s suggested distinction between the 

repose wording in R.C. 2305.113(C) and R.C. 2305.10(C)(1) is incorrect. 

{¶ 53} Similarly, Minster quotes Hayes v. Gen. Motors Corp., 94 F.3d 644, 1996 

WL 452916 (6th Cir.1996), for the fact that “ ‘failure to commence the action within the 

applicable time period extinguishes the right itself and divests the court . . . of any subject 

matter jurisdiction[.]’ ” Minster Brief at p. 7. First of all, Hayes is an unpublished 

decision that has been deemed “non-precedential.” See Doss v. Clearwater Title Co., 

551 F.3d 634, 638 (7th Cir. 2008). Furthermore, while Hayes made such a statement at 

the end of the opinion (based on its interpretation of Tennessee law), the case was 

decided under Fed.Civ.R.P. 12(b)(6), not 12(b)(1). Hayes at *1. 

{¶ 54} In rejecting the view that statutes of repose are “jurisdictional,” Doss noted 

the established principle that:

“Jurisdiction, therefore, is not defeated as respondents seem to 

contend, by the possibility that the averments might fail to state a cause of 

action on which petitioners could actually recover. For it is well settled that 

the failure to state a proper cause of action calls for a judgment on the merits 

and not for a dismissal for want of jurisdiction. Whether the complaint 

states a cause of action on which relief could be granted is a question of 

law and just as issues of fact it must be decided after and not before the 

court has assumed jurisdiction over the controversy. If the court does later 

exercise its jurisdiction to determine that the allegations in the complaint do 
-23-

not state a ground for relief, then dismissal of the case would be on the 

merits, not for want of jurisdiction....”

Doss. 551 F.3d at 638, quoting Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 

L.Ed. 939 (1946). 

{¶ 55} Another federal case that StampTech cites is also inapplicable. See

StampTech Brief at p. 11-12, discussing Tuck v. United States, 2022 WL 833367 (D.Col. 

Mar. 21, 2022). It is true that in Tuck, the issue was brought to the court through a 

Fed.Civ.R.P. 12(b)(1) motion. Id. at *1. However, unlike Ohio common pleas courts, 

“federal courts are courts of limited jurisdiction,” and “courts ‘are duty bound to examine 

facts and law in every lawsuit before them to ensure that they possess subject matter 

jurisdiction.’ ” Id. at *2, quoting Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179, fn.3 

(10th Cir. 2011) (Gorsuch, J., concurring). Additionally, “[t]he party invoking federal 

jurisdiction has the burden of establishing said jurisdiction.” Id., citing Merida Delgado v. 

Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). That is not the situation here. 

{¶ 56} Although the United States is immune from suit based on sovereign 

immunity, “which precludes federal jurisdiction,” the jurisdictional basis in Tuck was the 

Federal Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b)(1), which “ ‘waives sovereign 

immunity for certain state law tort claims against the United States.’ ” Tuck at *2, quoting 

Garling v. EPA, 849 F.3d 1289, 1294 (10th Cir. 2017). The issue was whether the claim 

was time-barred by a Colorado statute of repose, which would mean that the United 

States would not have waived immunity, causing a lack of federal jurisdiction. Id. at *3. 

Ultimately, the court overruled the motion, finding that the “FTCA preempts the Colorado 
-24-

statute of repose insofar as it reduces or interferes with the FTCA's timing and 

administrative provisions.” Id. at *9. 

{¶ 57} Again, Tuck is inapplicable. However, even if it were relevant, the court 

relied solely on the allegations in the complaint. Id. at *1. This is the same procedure 

that would apply in Ohio for motions based on failure to state a claim.

{¶ 58} Another case that StampTech cited is Angersola v. Radiologic Assocs. of 

Middletown, P.C., Conn. Super. No. MMXCV146012179, 2015 WL 5626267 (Aug. 20, 

2015), rev’d, 330 Conn. 251, 193 A.3d 520 (2018). StampTech Brief at p. 13. 

{¶ 59} Angersola involved a wrongful death action brought under Conn.Gen.Stat. 

52-555, which allowed recovery for wrongful death but provided that “no action shall be 

brought to recover such damages and disbursements but within two years from the date 

of death, and except that no such action may be brought more than five years from the 

date of the act or omission complained of.” 339 Conn. at 255 and fn.1. The defendants 

moved to dismiss under Conn. Practice Book Sec. 10-30, which allows motions to dismiss 

based on “(1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the 

person; (3) insufficiency of process; and (4) insufficiency of service of process.” 

Angersola, 2015 WL 5626267, *3.

{¶ 60} In contrast to Ohio law, motions based on failure to state a claim in 

Connecticut are included in a different code section, Conn. Practice Book Sec. 10-39, 

which is called “Motion to Strike; Grounds.” In that situation, courts are restricted to the 

facts alleged in the complaint and must construe them most favorably to the plaintiff. 

Faulkner v. United Techs. Corp., Sikorsky Aircraft Div., 240 Conn. 576, 580, 693 A.2d 
-25-

293 (1997).

{¶ 61} After the trial court dismissed the case for lack of jurisdiction, the Supreme 

Court of Connecticut reversed. It agreed with the lower court that “noncompliance with 

the repose provision of § 52-555 [the wrongful death statute] deprives a trial court of 

subject matter jurisdiction over the present action.” Angersola, 330 Conn. at 264. 

However, the court also found that the trial court had erred in refusing to let the plaintiff 

conduct any discovery. Id. at 277-278. 

{¶ 62} The court’s jurisdictional ruling was based on the fact that the wrongful 

death statute created a right that did not exist at common law. Id. at 265-269. In this 

regard, the court noted its prior holding that when “ ‘a specific time limitation is contained 

within a statute that creates a right of action that did not exist at common law, then the 

remedy exists only during the prescribed period and not thereafter.... In such cases, the 

time limitation is not to be treated as an ordinary statute of limitation ... but rather is a 

limitation on the [right] itself, and not of the remedy alone.... The courts of Connecticut 

have repeatedly held that, under such circumstances, the time limitation is a substantive 

and jurisdictional prerequisite, which may be raised at any time, even by the court sua 

sponte, and may not be waived.’ ” Id. at 265-266, quoting Ecker v. Town of W. Hartford, 

205 Conn. 219, 231-232, 530 A.2d 1056 (1987). 

{¶ 63} After making these comments, the court discussed a recent decision in 

which it had asked the parties to submit supplemental briefing on whether it should 

continue to characterize time limits in statutory actions as jurisdictional. Id. at 266-267, 

discussing Blakely v. Danbury Hosp., 323 Conn. 741, 150 A.3d 1109 (2016). The court 
-26-

explained its reasoning as follows:

Our request for supplemental briefing in Blakely reflects the tension 

we previously have perceived between our characterization of limitation 

periods contained within statutorily created rights of action as subject matter 

jurisdictional and the distinction we repeatedly have drawn “between a trial 

court's jurisdiction and its authority to act under a particular statute.

Subject matter jurisdiction involves the authority of a court to adjudicate the 

type of controversy presented by the action before it.... A court does not 

truly lack subject matter jurisdiction if it has competence to entertain the 

action before it.... Once it is determined that a tribunal has authority or 

competence to decide the class of cases to which the action belongs, the 

issue of subject matter jurisdiction is resolved in favor of entertaining the 

action.” 

Angersola, 330 Conn. at 267, 193 A.3d 520, quoting Reinke v. Sing, 328 Conn. 376, 389, 

179 A.3d 769 (2018).

{¶ 64} Ultimately, the court applied the doctrine of “legislative acquiescence” and 

decided there was no reason reconsider how it had treated the repose provision in the 

wrongful death statute. This was because the legislature had amended the statute a 

number of times since the 1987 decision in Ecker and had never altered the “conclusion 

that compliance with the repose period is a jurisdictional prerequisite to suit.” Id. at 267-

269. 

{¶ 65} Unlike Connecticut’s Supreme Court, the Supreme Court of Ohio does not 
-27-

have a similar history of treating a repose provision as a jurisdictional barrier. In addition, 

Connecticut appears to have made this decision with respect to actions not known at 

common law. Again, Ohio has not made such distinctions. Instead, the Supreme Court 

of Ohio has repeatedly expressed the view that “[s]ubject-matter jurisdiction is the power 

of a court to entertain and adjudicate a particular class of cases.” Kuchta, 141 Ohio St.3d 

75, 2014-Ohio-4275, 21 N.E.3d 1040, at ¶ 19. It has also stressed the belief that an

explicit statutory removal of jurisdiction is required. Ruehlman, 157 Ohio St.3d 296, 

2019-Ohio-2845, 136 N.E.3d 436, at ¶ 9; Ostanek, 166 Ohio St.3d 1, 2021-Ohio-2319, 

181 N.E.3d 1162, at ¶ 29. 

{¶ 66} “Ohio courts are not bound by decisions of courts in other states, or even 

‘rulings on federal statutory or constitutional law made by a federal court other than the 

United States Supreme Court,’ but we are free to consider the persuasiveness of such 

decisions.” State ex rel. Yost v. Volkswagen Aktiengesellschaft, 2019-Ohio-5084, 137 

N.E.3d 1267, ¶ 30 (10th Dist.), quoting State v. Burnett, 93 Ohio St.3d 419, 424, 755 

N.E.2d 857 (2001). (Other citations omitted.) For the reasons stated, we are not 

persuaded by any of the federal or out-of-state decisions that Appellees have cited. 

{¶ 67} As indicated, the trial court’s decision in Angersola was reversed because 

the court refused to allow discovery. The reversal related to the plaintiff’s claim that

under the continuous treatment or continuous conduct doctrines, her claim did not arise 

until the defendants’ tortious conduct ceased; at that point, the repose statute would begin 

to run. Angersola, 330 Conn. at 270, 193 A.3d 520. The Supreme Court of Connecticut 

agreed that these doctrines should apply to statutory causes of action. Id. at 271-272. 
-28-

{¶ 68} In addition, the court stressed that where a jurisdictional issue is intertwined 

with a case’s merits, “ ‘a court cannot resolve the jurisdictional question without a hearing 

to evaluate those merits’ * * * or ‘until the parties complete further discovery or, if 

necessary [and appropriate], a full trial on the merits has occurred.’ ” Id. at 278, quoting 

Conboy v. State, 292 Conn. 642, 653, and fn. 16, 974 A.2d 669 (2009). Consequently, 

even if we found the reasoning in Angersola persuasive, the trial court here should have 

allowed Everhart to conduct discovery.

{¶ 69} As a further matter, our review of Ohio case law indicates that courts have 

rendered judgment about statutes of repose by using Civ.R. 12(B)(6) or summary 

judgment. E.g. Antoon, 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, at ¶ 8

(R.C. 2305.113 and 12(B)(6) motion); Studer v. Volvo Cars of N. Am., L.L.C., 11th Dist. 

Portage No. 2006-P-0020, 2007-Ohio-890, ¶ 5 (R.C. 2305.10(C) and summary judgment 

motion); Sedar, 49 Ohio St.3d at 194, 551 N.E.2d 938 (R.C. 2305.131 and summary 

judgment motion); Jones v. Walker Mfg. Co., 8th Dist. Cuyahoga No. 97301, 2012-Ohio1546, ¶ 1-2 (R.C. 2305.10(C) and summary judgment motion); McClure v. Alexander, 2d 

Dist. Greene No. 2007-CA-98, 2008-Ohio-1313, ¶ 7 (R.C. 2305.131 and Civ.R. 12(B)(6) 

motion); and Grayson v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 110684, 2022-

Ohio-1668, ¶ 5 (R.C. 2305.113 and motion for judgment on the pleadings, described as 

a “ ‘belated Civ.R. 12(B)(6) motion’ ”). Consequently, these are the correct vehicles for 

deciding the repose issue, not Civ.R. 12(B)(1).

{¶ 70} Our discussion on this issue is not intended to express an opinion on 

whether Everhart’s complaint fails to state a claim against Appellees or whether summary 
-29-

judgment should be granted; we are simply indicating that the trial court’s method of 

analysis was incorrect. In this regard, we note that the complaint did not specify dates 

concerning the Press, other than that Merrick I purchased it as “used” from StampTech 

in 2013, and that Merrick I sold it to Merrick II in 2014. Complaint at ¶ 11. The complaint 

further alleged that between 2013 and the date of Everhart’s 2017 injury, “Defendants 

Merrick I, Minster, and Bill’s Machine performed various inspections, tests, maintenance, 

service, and repairs to the subject press.” Id. at ¶ 43.4

{¶ 71} Claims against one or more of these entities may be barred by the statute 

of repose. However, the trial court refused to allow any discovery (despite Everhart’s 

request) due to its belief that discovery would not affect subject matter jurisdiction. For 

the reasons stated, the court’s analysis was incorrect. 

{¶ 72} A further issue is presented based on whether the statute of repose even 

applies, particularly with respect to StampTech and Bill’s Machine. As noted in Jones, 

8th Dist. Cuyahoga No. 97301, 2012-Ohio-1546, “the courts have found that statutes of 

repose are inapplicable in cases where a supplier rebuilds or reconditions a product 

beyond its intended useful life.” Id. at ¶ 11, citing Denu v. W. Gear Corp., 581 F.Supp. 7 

4 StampTech was not mentioned in ¶ 43, but this appears to have been an inadvertent 

omission, since the other paragraphs in this claim (Count Two, negligence) refer to 

StampTech in every other paragraph as well as in the heading for Count Two. See

Complaint at ¶ 42 and 44-49. 
-30-

(S.D.Ind.1983) (applying Indiana law).

5

 Jones offered the further explanation on this 

point that:

“We take two points to be clear, though authority is sparse. The first 

is that any reconstruction or reconditioning (as distinct from a mere repair—

a familiar distinction in other areas of law, see, e.g., Aro Mfg. Co. v. 

Convertible Top Replacement Co., 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d 

592 (1961)) which has the effect of lengthening the useful life of a product 

beyond what was contemplated when the product was first sold starts the 

statute of repose running anew. Denu v. Western Gear Corp., 581 F.Supp. 

7 (S.D.Ind.1983) (applying Indiana law); Rollins v. Cherokee Warehouses, 

Inc., 635 F.Supp. 136 (E.D.Tenn.1986); Fugate v. AAA Machinery & 

Equipment Co., 593 F.Supp. 392 (E.D.Tenn.1984). Otherwise the statute 

would create an inefficient incentive to reconstruct or recondition old 

products rather than build new ones, in order to reduce expected liability 

costs; for under such a regime a product rebuilt after ten years would be 

immunized from liability. The second point is that merely by incorporating 

a defective component into an old product the incorporator cannot obtain 

5

In a recent decision, the Supreme Court of Indiana rejected a request to adopt what it 

called “a Denu-type exception that would restart the ten-year statute of repose when a 

manufacturer's refurbishment efforts yield a ‘new product’.” Estabrook v. Mazak Corp., 

140 N.E.3d 830, 833 (Ind. 2020) The court found that “[s]uch an approach would oblige 

courts to craft a test for assessing when a manufacturer's modification to its product is 

sufficiently different in degree that the result is a new product, different in kind from its 

predecessor.” Id. The court’s refusal was based on the plain meaning of its statute of 

repose and “because the task is not susceptible of a clear, bright-line legal rule.” Id. at 

833-834. As will be noted, there is a difference of opinion on this point.
-31-

the protection from suit that the statute of repose gave the old product. 

Black v. Henry Pratt Co., 778 F.2d 1278, 1282-83 (7th Cir.1985) (applying 

Indiana law); Hinds v. CompAir Kellogg, 776 F.Supp. 1102, 1107-08 

(E.D.Va.1991), aff ‘d without opinion, 961 F.2d 211 (4th Cir.1992) (ditto). 

Here, for example, Gallo made the improvements to the Taylor forklift more 

than ten years after its original sale. Gallo could not by this fortuity obtain 

immunity from products liability should its components prove defective and 

as a result cause an injury to someone. Id. at 331.”

Jones, 8th Dist. Cuyahoga No. 97301, 2012-Ohio-1546, at ¶ 11, quoting Richardson v. 

Gallo Equip. Co., 990 F.2d 330, 331 (7th Cir.1993). 

{¶ 73} In the trial court, StampTech and Bill’s Machine submitted affidavits denying 

that they had substantially rebuilt, remanufactured, or reconditioned the Press, even 

though they had worked on it. Amato Aff. at ¶ 5; Purtee Aff. at ¶ 6. These affidavits 

appear to have been attempts to avoid the principle mentioned in Jones. However, the 

trial court declined to let Everhart conduct any discovery, which precludes appellate

resolution of this issue. 

{¶ 74} Some courts have rejected the rebuild or recondition argument as it 

concerns the liability of the original manufacturer, unless “the machinery at issue was 

reacquired by the manufacturer, completely reconditioned, and then resold to new 

customers.’ Butchkosky v. Enstrom Helicopter Corp., 855 F.Supp. 1251, 1255 

(S.D.Fla.1993). However, in Butchkosky, the court noted that: 

The statute of repose precludes a manufacturer's liability for a design 
-32-

flaw in the original product, but the repair of the critical part provides an 

injured party with a cause of action against the party who performed the 

repair or who designed the replacement part if that part is different in design 

from the original. The repairing party might be the manufacturer or a third 

party. If it is the manufacturer, the suit must be based on the unsafe repair 

or on the design of the re-designed replacement component - not on a 

design flaw in the manufacturing process of the original multi-component 

product or the original component that was replaced.

(Emphasis sic.) Id. 

{¶ 75} Some courts “have employed a two-part test to determine whether the 

statute of repose should recommence when a product has been refurbished. First, 

courts must determine whether the refurbishing resulted in a “new product.” To 

determine whether the product should be considered ‘new,’ courts must inquire whether 

the refurbishing has lengthened the product's useful life beyond what was contemplated 

when the product was first sold. Second, if the product is considered ‘new,’ the suit will 

still be time barred unless the refurbishing was defective and proximately caused the 

injury.” Divis v. Clarklift of Nebraska, Inc., 256 Neb. 384, 389, 590 N.W.2d 696 (1999).

{¶ 76} The Supreme Court of Ohio has also said that “[a]lthough R.C. 2305.10(C) 

may prevent some suits against product manufacturers, in many situations, an injured 

party may be able to seek recovery against other parties. For example, if an employer 

modifies a machine after it is acquired, the employer could be liable for the consequences 

of a negligent alteration.” Groch, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377,
-33-

at ¶ 152. Logic dictates that this situation would also include modifications or changes 

by other third parties. Again, since the trial court did not allow discovery or exploration 

of the matters asserted in the affidavits that were filed, a decision cannot be made based 

on the record as it currently exists. 

{¶ 77} In his brief, Everhart also contends that the trial court erred in merging his 

product liability claims with the negligence claims against Minster, StampTech, and Bill’s 

Machine for failing to competently maintain, inspect, and service the Press. The theory 

here is that the statute of repose in R.C. 2305.10(C) does not apply to the negligence 

claims that were dismissed. In response, Appellees argue that they are manufacturers 

or suppliers under the OPLA, and that all common law product liability claims are barred. 

Because the trial court erred in dismissing the complaint under Civ.R. 12(B)(1), we need 

not address this point in detail. 

{¶ 78} We do note that R.C. 2307.71(B) provides that “Sections 2307.71 to 

2307.80 of the Revised Code are intended to abrogate all common law product liability 

claims or causes of action.” This “preemption provision extinguishes any common-law 

claim that, as pled, actually meets the statutory definition of a product liability claim.” 

Volovetz v. Tremco Barrier Sols., Inc., 2016-Ohio-7707, 74 N.E.3d 743, ¶ 33 (10th Dist.), 

citing Evans v. Hanger Prosthetics & Orthotics, Inc., 735 F.Supp.2d 785, 796 (N.D.Ohio 

2010), and Miles v. Raymond Corp., 612 F.Supp.2d 913, 918 (N.D.Ohio 2009). “The 

essential nature of the substantive allegations of the plaintiff's claim, not the artificial label 

attached to the claim, determines the claim's true nature.” Id., citing Evans at 796 and 

Miles at 921.
-34-

{¶ 79} Under R.C. 2307.71(A)(13):

“Product liability claim” means a claim or cause of action that is 

asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the 

Revised Code and that seeks to recover compensatory damages from a 

manufacturer or supplier for death, physical injury to person, emotional 

distress, or physical damage to property other than the product in question, 

that allegedly arose from any of the following:

(a) The design, formulation, production, construction, creation, 

assembly, rebuilding, testing, or marketing of that product;

(b) Any warning or instruction, or lack of warning or instruction, 

associated with that product;

(c) Any failure of that product to conform to any relevant 

representation or warranty.

{¶ 80} If StampTech and Bill’s Machine did not “rebuild” the Press (as they 

contend), it is hard to see how Everhart’s claim fits within the statutory definition of a 

products liability claim. It may be that the OPLA applies, to the extent that liability is 

premised on warnings, failure to warn, failure to conform to a representation or warranty,

or marketing. Different duties can also arise under the OPLA depending on whether an 

entity is a “supplier” or a “manufacturer,” or whether a “supplier is placed into the ‘shoes’ 

of the manufacturer.” Parker v. ACE Hardware Corp., 2018-Ohio-320, 104 N.E.3d 298, 

¶ 43 (2d Dist.) (Tucker, J., concurring in part and dissenting in part). At this point, we 

lack a sufficient record to evaluate these issues. Consequently, we express no opinions, 
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other than noting these possibilities. 

{¶ 81} Based on the preceding discussion, the first assignment of error is 

sustained. 

III. Failure to Allow Discovery

{¶ 82} Everhart’s second assignment of error states that:

The Trial Court Committed an Abuse of Discretion by Failing to Afford 

Plaintiff-Appellant an Opportunity to Conduct Discovery Into the FactIntensive Issues That Had Been Raised in the Defense Motions.

{¶ 83} Under this assignment of error, Everhart contends that the trial court abused 

its discretion by preventing him from conducting discovery. The parties agree that 

discovery issues are reviewed for abuse of discretion. This is correct. E.g., Mauzy v. 

Kelly Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996).

{¶ 84} An abuse of discretion “ ‘implies that the court's attitude is unreasonable, 

arbitrary or unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219, 450 N.E.2d 1140 (1983). “[M]ost instances of abuse of discretion will 

result in decisions that are simply unreasonable, rather than decisions that are 

unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban 

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is 

unreasonable if there is no sound reasoning process that would support that decision.” 

Id. 

{¶ 85} According to Appellees, the trial court properly refused to allow discovery 
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because Civ.R. 12(B) does not contain a requirement that discovery be conducted before 

a complaint is dismissed. They also contend that Everhart failed to specify exactly what 

discovery was needed. 

{¶ 86} We have already indicated that the trial court’s disposition of the case under 

Civ.R. 12(B)(1) was incorrect and that Everhart should have been allowed to pursue 

discovery. Given these conclusions, the trial court’s statement that discovery would 

have made no difference was not based on sound reasoning. Consequently, Everhart’s 

second assignment of error has merit and is sustained.

IV. Conclusion

{¶ 87} Both of Everhart’s assignments of error having been sustained, the 

judgment of the trial court is reversed, and this cause is remanded for further proceedings.

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

TUCKER, P.J. and LEWIS, J., concur. 

Copies sent to: 

David R. Grant

Frank L. Gallucci, III

Paul W. Flowers

Louis E. Grube

Melissa A. Ghrist

John A. Smalley

Daniel F. Gourash

Jeffrey S. Moeller
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-

Patricia J. Trombetta

Thomas F. Glassman

Christopher C. Koehler

Lindsey Carr Siegler

Douglas S. Jenks

David M. Rickert

Edward T. Saadi

Merrick Manufacturing LLC c/o Christy Bugert

Hon. Dennis J. Adkins