Duckworth v. Burger King Corp.1/27/2005
{ } Crystal and Dennis E. Duckworth, plaintiffs-appellants, appeal from a judgment of the Franklin County Court of Common Pleas in which the court granted the motion for summary judgment filed by Burger King Corporation, defendant-appellee.
{ } According to appellants, on November 5, 1998, Crystal consumed a Junior Whopper, french fries, and a soda at approximately 1:00 p.m., at a Burger King restaurant in Reynoldsburg, Ohio. She ate nothing else the rest of the day. At approximately 2:00 a.m. the next morning, Crystal became ill and was admitted to the hospital, where she was diagnosed as having salmonella enteritis.
{ } On September 12, 2000, appellants filed an action in Franklin County Municipal Court. On September 5, 2001, appellants amended their prayer for relief in an amount that exceeded the jurisdictional amount of the municipal court. On October 15, 2001, the municipal court transferred the case to the Franklin County Court of Common Pleas.
{ } On March 6, 2003, the common pleas court issued an entry transferring the case back to municipal court, finding that it was without jurisdiction in the matter because a municipal court may not transfer a case in which the prayer for relief exceeds its jurisdiction, citing State ex rel. Natl. Emp. Benefit Serv., Inc. v. Cuyahoga Cty. Court of Common Pleas (1990), 49 Ohio St.3d 49, which held that the proper procedure in such circumstances is for the municipal court to dismiss the matter without prejudice for refiling in the appropriate court.
{ } On May 14, 2003, appellants filed a complaint in the present case in the common pleas court, alleging claims for breach of warranties, loss of consortium, respondeat superior, breach of contract, violations of the Pure Food and Drug Act, R.C. 3715.59, breach of implied warranty of merchantability, and violations of the Consumer Sales Practices Act ("CSPA"), R.C. Chapter 1345. Burger King filed an answer and a counterclaim. In the answer, Burger King denied liability and claimed that the statute of limitations had expired. In its counterclaim, Burger King alleged that it was entitled to attorney fees pursuant to R.C. 1345.09(F) and entitled to payment of $1,100 for the deposition expenses of Burger King's expert witness, Lincoln C. Conaway, D.O.
{ } On September 4, 2003, Burger King filed a motion for summary judgment, claiming that appellants could not prove causation and that the claim was barred by the statute of limitations. Appellants filed a cross-motion for summary judgment. Also on September 4, 2003, the municipal court filed an entry dismissing appellants' original September 12, 2000 complaint, otherwise than on the merits and without prejudice for refiling in the appropriate court, pursuant to the March 6, 2003 transfer from the common pleas court.
{ } On May 26, 2004, the common pleas court denied appellants' cross-motion for summary judgment and granted Burger King's motion for summary judgment. On June 14, 2004, the court filed an entry finding that appellants' action was barred by the statute of limitations, denying Burger King's request for attorney fees, and granting Burger King judgment against appellants for one-half of the cost of Dr. Conaway's deposition, or $550. In a separate action, appellants filed a complaint in the common pleas court within one year of the municipal court's September 4, 2003 entry dismissing the action. Appellants appeal the June 14, 2004 judgment of the common pleas court, asserting the following assignment of error:
The trial court erred in finding plaintiff's claim failed on September 5, 2001 for purposes of R.C. 2305.19 when the matter remained pending in municipal court and w
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