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McAdow v. Abbott3/27/2001
DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment of the Adams County Court of Common Pleas granting appellee's motion for judgment on the pleadings under Civ.R. 12(C) in a personal injury case.
On March 16, 1997, Debra Ann Jones McAdow and her daughter Desiree Hoop (appellants) were traveling on State Route 247 in Adams County, Ohio when their vehicle veered to the right of center, struck a guardrail and overturned. Appellants suffered various injuries and claim that appellee caused their vehicle to veer right of center by cutting off their path of travel. Appellants filed their original complaint against appellee on August 13, 1997. The original complaint was dismissed without prejudice on August 28, 1998. On August 27, 1999, appellants filed their current complaint. Appellee filed an answer and a motion to dismiss under Civ.R. 12(C) for judgment on the pleadings. The trial court granted the Civ.R. 12(C) motion on the basis that the statute of limitations for filing the claim had expired. Appellants filed a timely notice of appeal raising one assignment of error:
"THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS."
Under Civ.R. 12(C), a dismissal is appropriate "where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true; and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570. Thus, a Civ.R. 12(C) motion cannot be granted unless there are no disputes of material fact and the movant is entitled to judgment as a matter of law. Id. We independently review the motion as a matter of law to determine if it was properly granted. Midwest Pride, supra; Paterson v. Teodosio (1973), 34 Ohio St.2d 161.
In Ohio, there is a two-year statute of limitations for personal injury claims. R.C. 2305.10. The incident giving rise to this cause of action occurred on March 16, 1997. Appellants filed their original complaint within the two-year period on August 13, 1997; however, the complaint was dismissed without prejudice on August 28, 1998. The two- year statute of limitations expired approximately seven months afterward on March 16, 1999. Appellant's filed their current complaint on August 27, 1999.
The first issue presented for our review is whether appellants' complaint is timely under R.C. 2305.19, the savings statute, when the original complaint was voluntarily dismissed prior to expiration of the applicable statute of limitations. R.C. 2305.19 states, in part:
"In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date. * * * " (Emphasis added).
The record shows that appellants' original complaint was dismissed without prejudice under Civ.R. 41(A) prior to the running of the statute of limitations. A voluntary dismissal under Civ.R. 41(A)(1) is a failure "otherwise than upon the merits" under R.C. 2305.19. See Frysinger v. Leech (1987), 32 Ohio St.3d 38, paragraph two of the syllabus. However, it is well settled that R.C. 2305.19 is not applicable to an action that is dismissed before the statute of limitations has run. See Lewis v. Conner (1985), 21 Ohio St.3d 1, 4; Ree
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