Herbert v. Farmer
2014 Ohio 877
Ohio Ct. App.2014Background
- Herbert was injured on Farmers' property (Nov. 24, 2009).
- Initial complaint (Nov. 24, 2010) named Farmers and subrogee entities with negligence claims.
- On Dec. 5, 2011, Herbert dismissed Farmers via Civ.R. 41(A).
- On Dec. 9, 2011, Herbert dismissed remaining subrogee defendants via Civ.R. 41(A).
- Herbert refiled the action under R.C. 2305.19 on Dec. 10, 2012, after the one-year savings-period had begun.
- Trial court granted Farmers’ dismissal as untimely under the savings statute; Herbert appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the one-year savings period commence? | Herbert contends period began Dec. 9, 2011. | Farmers contend period began Dec. 5, 2011. | Period began Dec. 5, 2011; refiling Dec. 10, 2012 untimely. |
Key Cases Cited
- Holschuh v. Newcomb, 2011-Ohio-6205 (11th Dist. Trumbull No. 2010-T-0129, 2011) (savings statute not tolled indefinitely; one-year window limits refiling)
- Hembree v. Mendenhall, 2010-Ohio-? (12th Dist. Butler No. CA2006-06-129, 2007-Ohio-459) (savings statute requires failure otherwise than on merits)
- Eckmeyer v. Blough, 2013-Ohio-3603 (9th Dist. Summit No. 26669) (refiling outside one-year window proper basis for dismissal)
- McGowan v. Family Med., Inc., 2002-Ohio-4071 (5th Dist. Stark No. 2001CA00385) (savings statute applied to whole action; not to be used repeatedly)
- Cincinnati v. Berretta U.S.A. Corp., 95 Ohio St.3d 416 (2002-Ohio-2480) (standard for motion to dismiss on pleadings when external matters considered)