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City of Cleveland v. North Pacific Group6/20/2002
ures, it represented to the city the following:
. " `M-GUARD equals or exceeds the performance of other wood preser-vatives. It can provide a service life of up to 35 years or more, depending on wood species, size and service conditions.' " (Emphasis added.)
. The record furthermore reflects that although the city decided to purchase copper naphthenate poles for use in its system, the city never specified the use of M-Guard, OMGA's brand of copper naphthenate, in any of its contracts with its general contractors or with its pole suppliers. Thus, the city failed to establish that it justifiably relied on OMGA's representation regarding M-Guard.
. Moreover, the record contains testimony that Cahaba and Olon Belcher had treated poles with copper naphthenate from another manufacturer, Chapman, in addition to that manufactured by OMGA; yet the record reflects that the city's expert, Dr. Burke, made no attempt to quantify the poles treated with OMG's copper naphthenate and those treated with Chapman's product. Thus, this record shows the city also failed to establish that its reliance on OMGA's representation proximately caused the damages arising from the allegedly defective poles.
. Accordingly, applying the directed verdict standard of Civ.R. 50(A)(4) and construing the evidence most strongly in favor of the city, we have concluded that the trial court correctly granted a direct verdict on this claim. This assignment of error is not well taken.
. On the basis of the foregoing analysis of the statutes of limitations, the city's lack of evidence regarding the seventy-one poles and its fraud claim, we have concluded the trial court did not err in its dispositions of the city's claims as presented for review in Case Nos. 78706 and 78871.
Judgment affirmed.
JUDGE TERRENCE O'DONNELL
JAMES D. SWEENEY, P.J. CONCURS
DIANE KARPINSKI, J. DISSENTS (See separate Opinion)
KARPINSKI, J., DISSENTING:
. Respectfully, I dissent from the majority opinion. While I concur with the majority's understanding of the pertinent facts in the case at bar, I do not agree with the majority's failure to follow this court's precedent applying the Ohio's savings statute, R.C. 2305.19, to those facts.
. I accept as correct the majority's analysis of the applicable statutes of limitations on the City's various contract and tort claims. I also agree that as of September 10, 1999, when the city's second case (No. 391217) was filed, the statute of limitations on all of its C-5 and requirements contract claims had expired pursuant to each of the respective limitations periods. The narrow issue that remains to be decided is whether those claims were saved when it added them by amending the original complaint in Case No. 391217 on October 19, 1999. I disagree with the majority's answer to this question because neither the statute nor this court's own precedent support that decision. . Under R.C. 2305.19, the savings statute, a timely refiled claim relates back to the original filing if certain requirements are satisfied. The savings statute provides in pertinent part:
. "In an action commenced, or attempted to be commenced, * 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 * may commence a new action within one year after such date."
. The Ohio Supreme Court has stated "the savings statute applies when the original suit and the new action are substantially the same." Children's Hosp. v. Ohio Dept. of Public Welfare (1982), 69 Ohio
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