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Gruber v. Kopf Builders9/20/2001
argued that Gruber II was barred by the one-year limitation period set forth in R.C. 2305.19 and that, therefore, the trial court did not have subject-matter jurisdiction of the second filing. We agree.
The law requires the court to abide by the legislative parameters expressly set forth in R.C. 2305.19. In relevant part, the statute provides:
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 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.
In conjunction with R.C. 2305.19, a voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than upon the merits within the purview of the statute. Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, paragraph two of the syllabus. See, also, Chadwick v. Barba Lou, Inc. (1982), 69 Ohio St.2d 222, 431 N.E.2d 660.
Civ.R. 41(A) sets forth three different mechanisms by which a plaintiff can voluntarily dismiss a case, ach of them limits the plaintiff's ability to refile . Frysinger at 42. In reviewing the same type of dismissal at issue here, that is, a voluntary dismissal by written notice without the approval of the court or other parties, the Supreme Court of Ohio noted the policy considerations behind R.C. 2305.19:
The civil rules seek to impose reasonable restrictions on all three forms of voluntary dismissals to preclude unwarranted refilings. This court need not supplement those restrictions by denying the apparent legislative prosecution from the limitations bar under R.C. 2305.19 for the seasonably refiled action. An action fails when the plaintiff voluntarily dismisses it. Frysinger at 43.
As stated in Hancock v. Kroger (1995), 103 Ohio App.3d 266, 659 N.E.2d 336, a case may only be extended by virtue of R.C. 2305.19 for one year after the initially filed action fails otherwise than upon the merits. The savings statute may be used only once to invoke an additional one-year time period in which to refile an action. Romine v. Ohio State Highway Patrol (2000), 136 Ohio App.3d 650, 737 N.E.2d 586; Seawright v. Zabell (Apr. 27, 1989), Cuyahoga App. No. 55232, unreported, 1989 Ohio App. Lexis 1601.
In the case before us, appellant voluntarily dismissed Gruber I on April 1, 1998. In order to avail himself of the one-year refiling privilege set forth in R.C. 2305.19, appellant would have had to refile Gruber II, as a new action, no later than April 1, 1999. Instead, this case was refiled on January 5, 2000, clearly outside the one-year limitation period specified in R.C. 2305.19. Thus the trial court patently lacked jurisdiction to proceed.
Appellant argues that the one-year limitation period set forth in R.C. 2305.19 is tolled during the pendency of his appeal of Gruber I. If tolled, he argues, the limitation period would not begin to run until the date the appeal was dismissed, November 29, 1999, making his January 5, 2000, refiling timely. We do not agree.
First, none of the cases cited by appellant supports such a position. In fact, none of the cases relied upon by appellant involved a plaintiff's voluntary dismissal pursuant to Rule 41(A). In Colello v. Bates (1950), 88 Ohio App. 313, 100 N.E.2d 258, the appellate court affirmed a demurrer granted by the trial court. Defendants' demurrer claimed that the plaintiff had never effected proper service. The court agreed and dismissed the appeal, otherwise than upon the merits.
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