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McAdow v. Abbott3/27/2001
se v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 163; Armbrust v. United Tel. Co. of Ohio (1997), 119 Ohio App.3d 497, 500. The plain language of the statute indicates that if a plaintiff voluntarily dismisses an action before the statute of limitations has run, that party cannot rely on the savings statute to re-file the complaint after the statute of limitations has expired. See Armbrust, supra, citing Malatesta v. Sharon Twp. Trustees (1993), 87 Ohio App.3d 719, 722.
The appellants argue that even if the savings statute does not apply to their negligence claim, the statute would apply to claims for assault or battery, which have one-year statutes of limitations under R.C. 2305.111. They argue that both their original and current complaints state a claim for assault or battery; that the original complaint was voluntarily dismissed after the expiration of the statute of limitations for an assault or battery; and thus the current complaint was timely under R.C. 2305.19. We do not agree.
Appellants' original complaint is not included in the appellate record before us. Nevertheless, even if the original complaint in this case did state a claim for assault or battery, we would still find this argument meritless. Appellants' current complaint does not state a claim for assault or battery; it is a negligence claim. Appellants averred that appellee intentionally fled the scene of the accident to avoid detection of his "negligent, willful, wanton, grossly negligent, reckless, malicious conduct." There is no allegation that appellee intentionally struck appellants' vehicle, or that he cut them off in an attempt to hit them or frighten them. Construing the pleadings in favor of the appellants, we conclude that assault and battery were not theories of recovery in their current complaint, and that R.C. 2305.19 does not apply to "save" appellants' cause of action.
Next, appellant Desiree Hoop argues that the trial court erred in granting the Civ.R. 12(C) motion because she is a minor, and the statue of limitations does not begin to run on her claim until she is eighteen years of age. Desiree Hoop's minority was not pled in the current complaint as required by Civ.R. 8(H), which states:
"Every pleading or motion made by or on behalf of a minor or an incompetent shall set forth such fact unless the fact of minority or incompetency has been disclosed in a prior pleading or motion in the same action or proceeding."
Moreover, she did not seek to amend the complaint at any time. In deciding a motion for judgment on the pleadings, the court is confined to the complaint averments unaided by affidavits or other extrinsic evidence. Peterson, supra. Because Desiree Hoop did not plead her minority, a fact that would toll the statute of limitations, we find that the trial court did not err in granting appellee's Civ.R. 12(C) motion for judgment on the pleadings as to her claim.
Finally, appellants argue that R.C. 2305.19 is unconstitutional as applied by the trial court. Specifically, appellants contend that the savings statute violates their rights of equal protection. In reviewing a constitutional challenge to a statute based on a violation of the right to equal protection, we first examine the purported class distinction to decide if a suspect class or fundamental right is involved. Adamsky v. Buckeye Local School Dist. (1995), 73 Ohio St.3d 360. In the absence of a suspect class or fundamental right, legislative distinctions are valid if there is a rational basis for the unequal treatment of different groups. Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 353.
Appellants appear to argue that the savings statute involves a fundam
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