Gruber v. Kopf Bldrs., Inc.

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[Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78770 MAXWELL JAY GRUBER, SR., ETC., Appellant, JOURNAL ENTRY v. AND KOPF BUILDERS, INC. et al., OPINION Appellees. DATE OF ANNOUNCEMENT OF DECISION: September 20, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-399545 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: Oct. 1, 2001 APPEARANCES: For plaintiff-appellant: CARAVONA & CZACK, P.L.L., DONALD E. CARAVONA and THOMAS J. SILK, ESQ. 1900 Terminal Tower 50 Public Square Cleveland, Ohio 44113 Appearances continued on next page For defendants-appellees: GALLAGHER, SHARP, FULTON & NORMAN, ALTON L. STEPHENS and MONICA A. SANSALONE, ESQ. 1501 Euclid Avenue 7th Floor Bulkley Building [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] Cleveland, Ohio 44115 POWERS & ASSOCIATES, DONALD H. POWERS, and IRIS J. CABRERA, ESQ. 2 Berea Commons, Suite 215 P.O. Box 1059 Berea, Ohio 44017 DAVIS & YOUNG, HENRY A. HENTEMANN and CORNELIUS J. O SULLIVAN, ESQ. 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 REMINGER & REMINGER CO., L.P.A., and JOHN J. REAGAN, ESQ. 113 St. Clair Building Cleveland, Ohio 44114 KARPINSKI, Administrative Judge. {¶1} This appeal arises out of a wrongful death action, filed for a second time pursuant to Ohio s Savings Statute, R.C. 2305.19. Plaintiff-appellant, ( appellant ) individually and Maxwell as the Jay Gruber, administrator of Sr. the estate of his son, Maxwell Gruber, a minor, deceased, filed a predecessor case, Trial Court No. 324049 ( Gruber I ) and the within action ( Gruber II ). {¶2} Prior to any review of appellant s specific assignments of error, this court is required to respond to the jurisdictional Courtyard question Condominium raised Unit by this Owner s appeal. Appellees, Association, Inc. [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] ( Courtyard ), ( Renner ), complaint Condominium claim in that Gruber A , and appellant s II was Management, refiling untimely limitation set forth in R.C. 2305.19. {¶3} Renner under of the a Inc. second strict time We agree. Issues pertaining to subject-matter jurisdiction are never waivable and this court, therefore, must raise the issue sua sponte. Proctor v. Giles (1980), 61 Ohio St.2d 211, 212- 213, 400 N.E. 2d 393, fn. 1; Teramar v. Rodier Corp. (1987), 40 Ohio App.3d 39, 531 N.E. 2d 721. In reviewing the facts, we find that appellant did not timely file this case in the trial court within the one-year limitation period set forth in R.C. 2305.19. {¶4} The pertinent procedural history of both Gruber I and Gruber II is undisputed. Both of appellant s cases were filed as a result of the drowning death of his son in a retention basin located on the property of Courtyard. filed on January 17, 1997, within the Gruber I was timely two-year limitation period, which was triggered on January 28, 1995, the date of decedent s death. defendants: Moenkhaus the In Gruber I, appellant named the following city Management of Westlake, Group, the Inc., Martin Kopf Organization, Builders, Inc., Courtyard, Condominium A, Renner, and Carl S. Andreano and Associates, Inc. On March 13, 1998, appellant voluntarily [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] dismissed the City of Westlake, the Martin Organization, and Moenkhaus Management Group, Inc. in accordance with Rule 41(A). On April 1, 1998, appellant then voluntarily dismissed the remaining defendants, again pursuant to Rule 41(A). {¶5} Despite appellant s voluntary dismissal of the last set of defendants, the trial court, nonetheless, brought the parties together on April 13, 1998, and vacated the April 1, 1998 dismissal. jurisdiction, Erroneously the court believing permitted it the had subject-matter case to proceed, ultimately resulting in the court's granting summary judgment to each remaining defendant on August 13, 1998. {¶6} error Appellant the motions. trial appealed court s to this granting court each and of assigned the as defendant s Without reaching the merits of appellant s claimed errors, this court dismissed the appeal on November 29, 1999, because the trial court did not have subject-matter jurisdiction over Gruber I after the April 1, 1998 voluntary dismissal. Gruber v. Kopf Bldrs., Inc. (Nov. 4, 1999), Cuyahoga App. No. 75238. {¶7} On January 5, 2000, appellant filed Gruber II in the trial court as a brand new matter, which was then transferred back to appellees the original filed trial essentially judge the in Gruber same I. motions As for before, summary [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] judgment, appeals which the were trial granted court s for a second granting summary judgment in Gruber II. time. appellees This motions case for Appellees, Kopf Builders, Inc. and Courtyard, Condominium A, and Renner also filed motions for judgment on the pleadings, which motions were denied by the trial court. Appellees 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 jurisdiction of the second filing. {¶8} not have subject-matter 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: {¶9} "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 2305.19, a a new action within one year after such date." {¶10} In dismissal conjunction pursuant otherwise than statute. Frysinger to upon with Civ.R. the v. R.C. 41(A)(1) merits Leech constitutes within (1987), 32 the Ohio voluntary a failure purview of the St.3d 38, 512 [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] 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. {¶11} Civ.R. 41(A) sets forth three different mechanisms by which a plaintiff can voluntarily dismiss a case; [e]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: {¶12} The restrictions on civil all rules three seek forms preclude unwarranted refilings. those restrictions by of to impose voluntary reasonable dismissals to This court need not supplement 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. {¶13} 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 Hwy. Patrol [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] (2000), 136 Ohio App.3d 650, 737 N.E.2d 586; Seawright v. Zabell (Apr. 27, 1989), Cuyahoga App. No. 55232. {¶14} 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. 5, 2000, clearly Instead, this case was refiled on January outside specified in R.C. 2305.19. the one-year limitation period Thus the trial court patently lacked jurisdiction to proceed. {¶15} 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. {¶16} 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 plaintiff had never effected proper service. claimed that the The court agreed [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] and dismissed Plaintiff the never appeal, refiled limitation period. otherwise the than action upon within the the merits. one-year The import of the decision in Colello is that the one-year limitation period in R.C. 2305.19 starts to run upon the occurrence of a first dismissal otherwise than upon the merits. {¶17} 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 Bldrs., Inc. (Nov. 4, 1999), Cuyahoga App. No. 75238. The same reasoning applies to the case of Darling 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. {¶18} 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 limitation period in R.C. 2305.19. should activate the Appellant s reliance upon this case is mistaken because it was overturned in the Ohio Supreme Court decision of 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 recommence his action pursuant to R.C. 2305.19. could not [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] {¶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. {¶20} 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: {¶21} Statutes assure an end to of limitation litigation stability and repose. and are similarly designed to to establish a of state 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 [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] 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. {¶22} 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. {¶23} To date, LaBarbera at 114. 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 four elements: (1) that the defendant made misleading, (3) a factual that it misrepresentation, induced actual reasonable and in good faith, and (4) that to the relying party. Romine at 654. (2) that reliance it which was is it caused detriment [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] {¶24} First and foremost, appellant cannot show that the defendants made a factual misrepresentation at all. appellant does not even meet the estoppel, this argument fails. first element of Because equitable Hence, appellant s reliance upon the case of Hutchinson v. Wenzke (1999), 131 Ohio App.3d. 613, 723 N.E.2d situation 176, here, is misplaced. the defendants In Hutchinson, expressly agreed, unlike in that the plaintiff could refile a third complaint. case, there defendants outside is express indicating the 2305.19. no that one-year Absent the written appellant limitation consent could period express by approval of Gruber specified that writing, In this any file the in existed the II R.C. in Hutchinson, appellant cannot meet the rest of the elements of equitable estoppel. This argument, therefore, is without merit. {¶25} Because the trial court lacked jurisdiction to proceed in this case, appellant s remaining assignments of error are moot and will not be addressed. Accordingly, we hold that the judgment of the trial court is affirmed on an alternate basis: that is, because appellant s untimely filing of this case was outside the strict one-year time period set forth in R.C. 2305.19. {¶26} The court finds that there were reasonable grounds for this appeal. [Cite as Gruber v. Kopf Builders, Inc., 147 Ohio App.3d 305, 2001-Ohio-4361.] {¶27} It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Judgment accordingly. MICHAEL J. CORRIGAN and PATRICIA ANN BLACKMON, JJ., concur.

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