Opinion
Case No. 3:04CV7433.
December 2, 2004
ORDER
This is a product liability action arising out of an automobile collision. Plaintiff, Vickie Taynor, and her husband, Gerald Taynor, seek damages for injuries Ms. Taynor suffered as a result of an allegedly defective seat belt in her 1990 Pontiac Grand Prix. Plaintiffs brought this action against General Motors (GM), the manufacturer of Ms. Taynor's automobile.
Pending is defendant's motion for summary judgment. For the following reasons, defendant's motion shall be granted.
Background
On May 13, 1998, automobiles being operated by plaintiff and Kelly Siefke collided. Plaintiff claims that Ms. Siefke caused the collision by failing to yield the right-of-way and making an improper left turn in front of plaintiff's vehicle. Ms. Taynor further contends that, though she wore her seat belt at the time of the accident, the seat belt in her 1990 Pontiac did not restrain her properly, thereby increasing the severity of her injuries, which were serious.
Plaintiffs originally brought suit against GM on March 2, 1999, in the Lucas County Court of Common Pleas. That court dismissed plaintiffs' suit without prejudice on March 9, 2001, because plaintiffs' counsel failed to appear for a settlement/pretrial conference.
Plaintiffs refiled their suit in the Lucas County Court of Common Pleas on March 16, 2001. On the eve of the June 30, 2003, trial date, the court sua sponte dismissed plaintiffs' second suit due to a scheduling conflict in the court's docket. The court's dismissal order stated that the dismissal was "without prejudice and other than on the merits with Plaintiff having the right to re-file within one year."(Doc. 4, Ex. 4.) Plaintiffs' counsel neither objected to the court's dismissal, took any steps to have the order vacated, nor appealed the order.
Defendants also contend that the court dismissed the case in part because "plaintiffs' second counsel did not want to proceed with trial on the August 4, 2003, trial date." (Doc. 4, at 4.). This opinion disregards that contention.
Plaintiffs brought suit for a third time in the Lucas County Court of Common Pleas on June 22, 2004. Defendant removed the case to this court, and immediately moved for summary judgment.
Discussion
Defendant contends that plaintiffs' present suit is barred by the statute of limitations. Defendants concede that plaintiffs filed their original action within the applicable statute of limitations, and that on its dismissal, plaintiffs had a right to refile within one year pursuant to the Ohio savings statute. O.R.C. § 2305.19. Defendants argue, however, that the statute of limitations expired following the second dismissal. In making this argument, the defendants contend that, despite the statement in the trial court's sua sponte dismissal entry regarding a right to refile within on year, the plaintiffs cannot rely on the savings statute as a basis for refiling the instant suit. Plaintiffs respond with three arguments: 1) when they filed this suit, they did not rely on the savings statute; rather they merely were exercising the leave granted in the court's second dismissal order (the July 9, 2003, order); 2) the state court had authority pursuant to Ohio Civ. R. 41(A)(2) to dismiss plaintiffs' complaint "upon such terms and conditions as the court deem[ed] proper," including granting leave to plaintiffs to refile their action within one year; and 3) they relied in good faith on the state court's order, and thus equity demands that plaintiffs have the right to refile their action. (Doc. 9).
Plaintiffs' arguments are not persuasive.
1. Ohio's Savings Statute
In Gates v. Precision Post Co., 74 Ohio St.3d 439, 439 (1996), the Supreme Court of Ohio held that the "statute of limitations set forth in R.C. § 2305.10 governs personal injury claims arising from products liability statutes set forth in R.C. § 2307.71 et seq. . . ." Revised Code § 2305.10 provides a two-year statute of limitations for personal injury claims.
Plaintiffs' cause of action arose on the date of the accident, May 13, 1998, and expired two years later on May 13, 2000. Plaintiffs filed their original suit within the two-year statute of limitations. The statute of limitations, however, expired before the filing of the second and third suits. To bring suit after the statute of limitations had run, plaintiffs necessarily relied on Ohio's saving statute.
Ohio's saving statute, O.R.C. § 2305.19, provides:
In any action that is commenced or attempted to be commenced, if . . . the plaintiff fails otherwise than upon the merits, the plaintiff . . . may commence a new action within one year after the date of . . . the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
While the Ohio Supreme Court has not directly decided the issue, the Court has strongly suggested that a plaintiff may use the savings statute only once to refile a case. Thomas v. Freeman, 79 Ohio St.3d 221, 227 (1997) (rejecting arguments that classifying a dismissal as "without prejudice" would risk continuous refilings because "the savings statute can be used only once to refile a case") (citing Hancock v. Kroger Co., 103 Ohio App.3d 266, 269 (1995); Iglodi v. Montz, 1995 WL 516609, *4 (Ohio Ct.App. Aug. 4, 1995)).
Ohio appellate courts have consistently held that the savings statute can be used only once. See e.g., Gamble v. Patterson, 155 Ohio App.3d 320, 324 (7th Dist. 2003); Gruber v. Kopf Builders, 147 Ohio App. 3d 305, 309 (8th Dist. 2001); Romine v. Ohio State Highway Patrol, 136 Ohio App. 3d 650, 654 (10th Dist. 2000); Estate of Carlson v. Tippett, 122 Ohio App. 3d 489, 491 (11th Dist. 1997).
Plaintiffs argue that this rule should not apply here because the court, acting sua sponte, not the plaintiffs, dismissed plaintiffs' cause of action on both occasions: first, as a result of plaintiffs' counsel's failure to appear and second, due to a scheduling conflict on the court's calendar. Plaintiffs, however, cite no statutes, court rules, or case law for their claim that how the dismissal came about makes a difference under the savings statute.
Ohio cases have held, moreover, that whether the dismissal is voluntary or involuntary is irrelevant. See e.g. Tippett, 12 Ohio App.3d at 492 ("[T]he prohibition against refiling outside the grace period of one year is not premised upon the nature of the dismissal."); Iglodi, supra, at *7 ([T]he prohibition against subsequent refilings "is premised not on the nature of the dismissal . . . but because the refiling of the action was after the expiration of the statute of limitations and the prior case was not filed `in due time' under R.C. 2305.19.").
Thus, regardless of the voluntary or involuntary nature of the dismissal, the savings statute gave the plaintiffs, after the first dismissal, one year in which to refile their action. Plaintiffs' first refiling met this deadline. The second refilling, following the trialcourt'seve-of-trial sua sponte dismissal, did not, however, meet the deadline.
2. An Ohio Trial Court's Authority Under Ohio Civ. R. 41
Plaintiffs also argue that the state court had authority to grant a right to refile following its second dismissal. Plaintiffs correctly assert that pursuant to Ohio Civ. R. 41(A)(2) courts have authority to dismiss a plaintiffs' complaint "upon such terms and conditions as the court deems proper." This does not mean, however, that Rule. 41(A)(2) gives a court authority to grant an extension of the limitations period beyond that allowed by the savings statute.
Plaintiffs misinterpret the purpose of a court's authority to impose conditions on a dismissal. The primary purpose is to protect a defendant's rights, not to ensure that plaintiffs can refile their claim. Abrams v. Elsoffer, 46 Ohio App. 3d 11, 12 (8th Dist. 1988); Lilly v. Lilly, 26 Ohio App. 3d 192, 193 (2d Dist. 1985) ("The purpose of allowing a court to condition a dismissal upon certain terms is to prevent prejudice to the nonmoving party.).
"For example, the trial court may award costs and attorney fees incurred by a defendant before dismissal. . . . Such an award should be limited to those expenses which will not benefit the defendant in subsequent litigation or otherwise provide a windfall." Abrams, 46 Ohio App. at 12.
Courts, moreover, have no authority to extend the statute of limitations. In Duncan v. Stephens, 2004 WL 1067942 (Ohio Ct.App. May 13, 2004), the court specifically addressed the issue of whether the savings statute can be applied to a third filing when a trial court expressly preserves a plaintiff's right to refile the action. Id. at *2.
In Duncan, the plaintiffs' medical malpractice action had been dismissed, refiled pursuant to the savings statute, and dismissed for a second time in the following entry: "Based upon plaintiff's expert recently losing his license, case is dismissed pursuant to Civ. R. 41(B)(3) without prejudice with ability to refile [within] 1 year. Final. VOL." Id. at 1.
Holding that the trial court had no authority to enlarge the savings statute, the court reasoned:
The savings statute can be used only once, because otherwise, a plaintiff could infinitely refile his action, and effectively eliminate statutes of limitations. . . . Additionally, . . . the date for filing a new action relates back to the date of filing the immediately proceeding action for limitation purposes. . . . If the savings statute used once, the third action relates back to the second action, which was untimely. That is, the refiling, even if allowed pursuant to Civ. R. 41, must be within the statute of limitations or the savings statute.Id. at *3 (internal citations omitted).
The present case is indistinguishable from Duncan: accordingly, the state trial court, despite its attempt to do so, and thereby protect the plaintiffs' claim, could not enlarge Ohio's saving statute.
3. Plaintiff's Reliance on the Ohio Trial Court's Order
Plaintiffs' final argument is that principles of equity require me to permit plaintiffs to refile their action merely because plaintiffs relied in good faith on the state court's order. (Doc. 9.) Ohio courts have held that equity demands no such action.
"Ascertaining the applicable law and gauging the possible risk to a given cause of action prior to any dismissal under Civ. R. 41 are precisely the kind of decisions that attorneys cannot delegate to opposing counselor the courts." Duncan, supra, at *3 ("[A]lthough [plaintiff] and the trial court may have understood the dismissal to be `without prejudice,' this understanding does not constitute an authorization for the appellant to proceed in derogation of the statute of limitations."); see also Heskett v. Paulig, 131 Ohio App.3d 221, 229 (3d Dist. 1999) (refusing to equitably estop defendant from obtaining a dismissal on statute of limitations grounds where case originally was dismissed by the court under Civ. R. 41(A)(2), refiled under the savings statute, dismissed again voluntarily based on a mistake of law by both counsel that plaintiff could refile, and then refiled).
Equity, rather, required plaintiffs to take advantage of the recourse available to them at the time of the second dismissal, namely either objecting to the dismissal, filing a motion to vacate the dismissal, or appealing the trial court's dismissal order. Gamble, 155 Ohio App.3d at 324 ("If the refiled complaint is erroneously dismissed by the trial court, the plaintiff must successfully challenge that dismissal either through an appropriate post-trail motion(such as a motion to vacate) or through a direct appeal.") (citing Thomas, 79 Ohio St.3d at 227).
Plaintiffs concede that an appeal was the proper course of action: "[T]he issue of whether the July 9, 2003 Dismissal Order was proper could and should have been raised upon an appeal." (Doc. 9, at 5-6, n. 4). Plaintiffs, however, incorrectly suggest that defendants should have brought an appeal on the dismissal. The state court's dismissal of plaintiffs' action amounted to a victory for defendants; having prevailed, they had no reason to appeal.
I conclude, accordingly, that plaintiffs' arguments in opposition to the defendants' motion for summary judgment are not well taken.
Conclusion
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment as to all counts in plaintiffs' complaint be, and the same hereby is, granted.
So ordered.