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Sreshta v. Kaydan5/6/1999
reimbursement was sought in the complaint. * The Conway holding is in accordance with the general principle of law that the statute of limitations may be used to bar affirmative actions but not to suppress or deny matters of defense to the claim against which the counterclaim is asserted.
We call attention to this Court's decision in Monastra v. D'Amore, supra, at 306, where we stated:
Even if at trial it is found that the statute of limitations has expired on D'Amore's legal malpractice counterclaim, her claim may be relevant as a defense to Monastra's claim for attorney fees and would not be barred as a recoupment or setoff. A counterclaim reduces the amount due on the primary claim when the counterclaim is based upon defective workmanship or other defective performance by the plaintiff of the contract on which the liquidated claim is based. L.A. Gross & Sons, Inc. v. Parisi (1990), 66 Ohio App.3d 697, 700, 586 N.E.2d 142, 144. The Supreme Court of Ohio has held that claim of a defendant which would be barred by the statute of limitations if brought in an action for affirmative relief is available as a defense or under the common law theory of recoupment, when the claim arises out of the same transaction as the plaintiff's claim for relief, and when it is offered only to reduce the plaintiff's right to relief. Riley v. Montgomery (1984), 11 Ohio St.3d 75, 11 OBR 319, 463 N.E.2d 1246, paragraph one of the syllabus. See, also, Drain v. DeFabio (July 21, 1994), Cuyahoga App. No. 65937, unreported, at 5, 1994 WL 386013.
Recoupment, however, can only be had to the extent sufficient to satisfy the plaintiff's claim. Riley at 77, 11 OBR at 320-321, 463 N.E.2d at 1248-1249.
Since defendant produced sufficient evidence in opposition to Dr. Sreshta's summary judgment motion on the account to raise substantial issues of disputed and material fact, the trial court erred in granting summary judgment in Dr. Sreshta's favor on her complaint.
Assignments of Error III and IV are sustained.
Summary judgment on the counterclaim is affirmed; summary judgment on the complaint is reversed; the case is remanded for further proceedings consistent with this opinion.
It is ordered that appellee and appellant shall each pay their respective costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Garfield Heights Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
DYKE, J., and ROCCO, J., CONCUR.
JAMES M. PORTER ADMINISTRATIVE JUDGE
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