596 N.E.2d 1131 | Ohio Ct. App. | 1991
Plaintiff Donald Armstrong appeals from the order of the trial court which awarded summary judgment to defendant Harp Realty Co., Inc. As we concur in the trial court's determination that plaintiff's complaint was barred by the statute of limitations, we affirm.
On May 23, 1990, defendant moved for summary judgment, alleging that the complaint was not filed within the limitations period set forth in R.C.
On August 8, 1990, the trial court granted defendant's motion for summary judgment. Plaintiff now appeals.
It is axiomatic that after its voluntary dismissal an action is treated as if it had never been commenced. Zimmie v. Zimmie
(1984),
In support of his claim to the contrary, i.e., that the previous filing tolled the statute of limitations, plaintiff relies upon In re Estate of Erbaugh (1943),
Plaintiff next suggests that the limitations period was tolled during the pendency of defendant's complaint.
The rule pertaining to whether the filing of a complaint tolls the statute of limitations within which to bring a counterclaim was cogently set forth in Scheetz v. Ucker (Feb. 24, 1987), Franklin App. No. 86AP-932, unreported, 1987 WL 7104, as follows:
"Although there is a division of authority throughout the United States, in Ohio a counterclaim asserted by the defendantagainst the plaintiff, which relates to the same transaction oroccurrence asserted in the original claim, relates back to theoriginal commencement of the action. National Retailers Mut.Ins. Co. v. Gross (1943),
In this case, plaintiff's negligence action, though originally brought as a counterclaim to defendant's action for forcible entry and detainer, did not arise from the same transaction as the action for forcible entry and detainer. Accordingly, the pendency of that action did not toll the limitations period applicable to plaintiff's negligence action. While plaintiff urges a contrary result pursuant to NationalRetailers Mut. Ins. Co. v. Gross (1943),
Plaintiff's first assignment of error is overruled.
Under the savings statute, where an action fails otherwise than on the merits, and the time for bringing that action has expired at the time of such failure, the action may be recommenced within one year. R.C.
Plaintiff's second assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
FRANCIS E. SWEENEY, P.J., JOHN F. CORRIGAN and PARRINO, JJ., concur.
THOMAS J. PARRINO, J., retired, of the Eighth Appellate District, sitting by assignment. *296