DocketNumber: No. 03 CO 17.
Citation Numbers: 801 N.E.2d 465, 155 Ohio App. 3d 320, 2003 Ohio 6276
Judges: WAITE, P.J.
Filed Date: 11/17/2003
Status: Precedential
Modified Date: 1/13/2023
{¶ 2} The parties were involved in an automobile accident which occurred on October 8, 1996. Appellants filed a lawsuit arising out of this incident on October 1, 1998, in the Columbiana County Court of Common Pleas. The complaint was served on Appellee at her Ohio address on October 8, 1998. Appellants concede this point in their appellate brief. The first complaint was voluntarily dismissed on April 10, 2000.
{¶ 3} The statute of limitations for this case, found in R.C.
{¶ 4} The second complaint was filed on April 6, 2001. The second complaint was dismissed on January 8, 2002, because Appellants had failed to serve the complaint on Appellee. There is no indication that Appellants filed any postjudgment motions to challenge the dismissal, and they did not file a direct appeal. *Page 322
{¶ 5} The third complaint was filed with the Columbiana County Court of Common Pleas on June 21, 2002, and forms the basis of this appeal. The trial court dismissed the complaint on February 25, 2003. The trial court concluded that the saving statute could not be used a second time to refile a complaint that had been previously dismissed. The saving statute, R.C.
{¶ 6} The court found that the statute of limitations for a personal injury claim had expired. The court noted that there was no caselaw supporting Appellants' belief that the one-year deadline found in the saving statute is tolled if the defendant is absent from the State of Ohio. The trial court dismissed the complaint on February 25, 2003. This was a little over eight months after the third complaint was filed.
{¶ 7} On March 21, 2003, Appellants filed this timely appeal.
{¶ 8} Appellants present two assignments of error on appeal:
{¶ 9} "The Trial Court erred in granting Summary Judgment when the Plaintiffs were unable to serve the re-filed Complaint due to the absence of the Defendant from the State of Ohio during and subsequent to Plaintiffs [sic] right to re-file under the Savings Clause of Rule 41 of the Ohio Rules of Civil Procedure."
{¶ 10} "The Trial Court erred in dismissing the action prior to allowing a full one year to perfect service, particularly when Defendant was shown to be absent the State of Ohio during that period."
{¶ 11} This appeal involves a challenge to summary judgment. An appellate court reviews summary judgment under a de novo standard, using the same standards as the trial court as set forth in Civ.R. 56(C).Grafton v. Ohio Edison Co. (1996),
{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of *Page 323
the nonmoving party's claim." Dresher v. Burt (1996),
{¶ 13} Appellants' argument is based more on a sense of injustice rather than on any statutes, court rules or caselaw. They refer to the "savings clause" of Civ.R. 41, but there is no savings clause in that rule. Presumably, Appellants intend to cite the saving statute, R.C.
{¶ 14} Appellants also make a passing reference to Civ.R. 4(E) which states:
{¶ 15} "If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This division shall not apply to out-of-state service pursuant to Rule 4.3 or to service in a foreign country pursuant to Rule 4.5."
{¶ 16} Appellants contend that Civ.R. 4(E) provided them with a full year to serve their complaint on Appellee. The rule actually gives a party six months to serve the complaint. After six months, the trial court may dismiss the complaint. This six-month rule, though, does not apply to out-of-state defendants, who are governed by Civ.R. 4.3. Appellants contend that Appellee was not living in Ohio during the time that the second or third complaints were pending. Appellants are apparently arguing that the second complaint should not have been dismissed under Civ.R. 4(E), but it is not clear why they think the trial court should have given them a full year before dismissing the third complaint.
{¶ 17} Appellants are probably relying on Civ.R. 3(A), which states that, "[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * * [.]" A trial court must give the plaintiff one full year to serve the complaint on the defendant, unless the complaint must be dismissed earlier under Civ.R. 4(E) or for reasons unrelated to the service of the complaint. See Goolsby v. Anderson Concrete Co. (1991),
{¶ 18} Appellants make an unsupported argument that a trial court must wait at least one year before dismissing a complaint filed under the authority of the saving statute if the defendant has left the State of Ohio. Appellants fail to consider that a complaint may be dismissed at any time for reasons other than the failure to properly serve the complaint on the defendant. The reason for the dismissal of the third complaint in this case was the expiration of the statute of limitations and not for failure to serve the complaint on the defendant.
{¶ 19} Appellee argues that the saving statute in R.C.
{¶ 20} There is no question in this case that Appellants served their first complaint on Appellee in Ohio on October 8, 1998. (Appellants' Brief, p. 1.) October 8, 1998, is the day that the statute of limitations expired. Appellants' only argument against applying the statute of limitations is that Appellee removed herself from Ohio, but that argument is inconsistent with Appellants' admission that Appellee had an Ohio address on the day the statute of limitations expired.
{¶ 21} Appellants voluntarily dismissed the first complaint on April 10, 2000. They necessarily relied on the saving statute to refile the case on April 6, 2001, because the statute of limitations had already expired. After the second complaint was dismissed, Appellants could not use the saving statute to refile it a third time. Appellants' argument in this third attempt, in which they try to establish a one-year service period under the saving statute, cannot be addressed in this appeal because the saving statute does not apply to the third complaint at all.
{¶ 22} If Appellants could not rely on the saving statute to file the third complaint, then the only question remaining is whether summary judgment was appropriate due to the expiration of the statute of limitations. Appellants argue that R.C.
Judgment affirmed.
Donofrio and Vukovich, JJ., concur.