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Gruber v. Kopf Builders9/20/2001
Plaintiff never refiled the action within the one-year limitation period. The import of the decision in Colellois that the one-year limitations period in R.C. 2305.19 starts to run upon the occurrence of a first dismissal otherwise than upon the merits.
In the case at bar, appellant's first such dismissal, which disposed of the entire case, occurred on April 1, 1998, not the date of this court's dismissal of Gruber I. Gruber v. Kopf Builders, Inc.(Nov. 4, 1999), Cuyahoga App. No. 75238, unreported, 1999 Ohio App. Lexis 5223. The same reasoning applies to the case ofDarling v. Home Gas & Appliances, Inc. (1963), 175 Ohio St. 250, 193 N.E.2d 391, in which the court's dismissal was the first such disposition.
Appellant also cites the case of LaBarbera v. Batsch (1966), 5 Ohio App.2d 151, 214 N.E.2d 443, for the argument that the appellate court's date of dismissal should activate the limitation period in R.C. 2305.19. Appellant's reliance upon this case is mistaken because it was overturned in the Ohio Supreme Court decision entitled LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 227 N.E.2d 55. The Supreme Court affirmatively decided that the appellate court's dismissal was not otherwise than upon the merits and, therefore, appellant could not recommence his action pursuant to R.C. 2305.19.
The facts in the case at bar differ significantly from those in the cases appellant cites. Nor do we find any case law which would allow us to carve out an exception to appellant's circumstance here. The undeniable fact is that the savings statute's one-year limitation is fixed by the legislature for specific and important historical reasons, not the least of which is the statute's implicit promise that if a plaintiff does not refile within one year from the date of his voluntary dismissal, there will be finality to the litigation.
The Ohio Supreme Court in LaBarbera discussed at length the policy considerations behind statutes of limitation, generally, and the specific limitation period set forth in R.C. 2305.19:
Statutes of limitation are similarly designed to assure an end to litigation and to establish a state of stability and repose. Townsend v. Eichelberger (1894), 51 Ohio St. 213, 216, 38 N.E. 207; Calahan, Statutes of Limitation Background, 16 Ohio St. L.J. 130. Although it was said many years ago in Ohio (Sheets v. Baldwin's Admrs.(1843), 12 Ohio 120; Newsom's Admr. v. Ran (1849), 18 Ohio 240), and elsewhere (1 Freeman on Judgments [5 Ed.], 569, Section 288), that the statute of limitations was a disfavored defense, the modern and better view is that it is as favored as any other defense, since it is based on an important legislative policy. 1 Freemen on Judgments (5 Ed.), 569, Section 288; Townsend v. Eichelberger, supra (51 Ohio St. 213); 34 Ohio Jurisprudence 2d 486, Limitation of Actions, Section 2. Although it has been said many times that the saving statute, Section 2305.19, Revised Code, is a remedial statute and to be liberally construed, e.g., Cero Realty Corp. v. American Manufacturers Mutual Ins. Co. (1960), 171 Ohio St. 82, 167 N.E.2D 774; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Bemis (1901), 64 Oho St. 26, 59 N.E. 745, the court is reluctant to infer that this principle is of more importance than the policies mentioned without completely clear evidence of legislative intent. LaBarbera at 114.
To date, the Ohio legislature has not seen fit to relax the explicit limitation period set forth in R.C. 2305.19. Nonetheless, appellant urges us to apply the doctrine of equitable estoppel in order to deem the filing date of Gruber II to be timely. In order to prevail on a claim of equitable estoppel, a plaintiff must prove
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