Garrett v. Gill
2011 Ohio 3449
Ohio Ct. App.2011Background
- Garrett sued Gill, Feltner, Nationwide, and American Family for injuries from a 2005 automobile accident in Ohio.
- Garrett filed suit March 5, 2007; Gill and Feltner, Kentucky residents, were served March 19, 2008 after initial service delays.
- Gill and Feltner moved to dismiss for failure to serve within Civ.R. 3(A); the trial court converted the motion to summary judgment and set for renewed hearing.
- Affidavits from Feltner and Gill (Dec. 2008) asserted their non-evading status and provided address history; Garrett attached a complaint showing differed addresses.
- The trial court granted summary judgment for Gill and Feltner on March 11, 2009; Garrett’s earlier appeal was dismissed for lack of finality until Civ.R. 54(B) language was supplied.
- The corrected Civ.R. 54(B) judgment entry became the subject of this appeal, with assignments of error focusing on the conversion to summary judgment and the tolling/limitations issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly converted the motion to dismiss to a summary-judgment motion. | Garrett argued no proper summary-judgment motion was filed; affidavits should not be considered. | Gill and Feltner urged the court sua sponte converted the motion and that affidavits could be considered. | Converting sua sponte to summary judgment was proper; affidavits could be considered. |
| Whether tolling under R.C. 2305.15 applies to Civ.R. 3(A) time limits and service. | Garrett contends R.C. 2305.15 tolls Civ.R. 3(A) time for out-of-state defendants. | R.C. 2305.15 tolling does not extend Civ.R. 3(A) service deadlines. | R.C. 2305.15 tolling does not apply to Civ.R. 3(A); service within one year of filing was required. |
| Whether the judgment entry is a final, appealable order under Civ.R. 54(B). | Garrett argued the entry lacked proper finality language. | Corrected Civ.R. 54(B) language renders the order final and appealable. | The corrected entry is a final, appealable order under Civ.R. 54(B). |
Key Cases Cited
- Saunders v. Choi, 12 Ohio St.3d 247 (1984) (tolling cannot extend Civ.R. 3(A) time limits; Civ.R. 3(A) must be complied with after filing)
- Allis-Chalmers Credit Corp. v. Herbolt, 17 Ohio App.3d 230 (1984) (standard for summary-judgment review; de novo)
- Burgess v. Tackas, 125 Ohio App.3d 294 (1998) (standard for summary-judgment; appellate review)