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 bаrred by the statute of limitations, we affirm.
I
Plaintiff filed this negligence action against defendant on February 21, 1990, fоllowing an accident on the premises which occurred on January 2, 1988.
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. 2305.10, and that the savings statute was inapplicable to this matter. In response, plaintiff asserted that he had previously filed a nеgligence action against defendant, on November 18, 1988, asserting it as a counterclaim in defendant’s action against him for forcible entry and detainer. Plaintiff further asserted that he had voluntarily dismissed ninety-sеven days later, on February 23, tolling the statute of limitations for ninety-seven days. Alternatively, plaintiff assertеd that his voluntary dismissal of the matter gave him an additional year within which to file the action pursuant to thе savings statute.
On August 8, 1990, the trial court granted defendant’s motion for summary judgment. Plaintiff now appeals.
II
In his first assignment оf error, plaintiff contends that the action was timely, as the statute of limitations was tolled during the pеndency of his counterclaim against defendant in the previous action.
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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 rulе 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,
“Although there is a division of authority throughout the United States, in Ohio
a counterсlaim asserted by the defendant against the plaintiff, which relates to the same transaction or occurrence asserted in the original claim, relates back to the original commencеment of the action. National Retailers Mut. Ins. Co. v. Gross
(1943),
In this case, plaintiffs negligence action, though originаlly 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 рendency of that action did not toll the limitations period applicable to plaintiff’s negligеnce action. While plaintiff urges a contrary result pursuant to
National Retailers Mut. Ins. Co. v. Gross
(1943),
Plaintiffs first assignment of error is overruled.
III
In his second assignment of error, plaintiff asserts that the trial cоurt erred in determining that the time for bringing the action was not extended by the savings statute.
Under the savings statute, where an action fails otherwise than on the merits, and the time for bringing that action has expired at thе time of such failure, the action may be recommenced within one year. R.C. 2305.19. Accordingly, while plаintiff’s voluntary dismissal of his first action, designated as a counterclaim, does in fact constitute a failurе otherwise than on the merits,
Costell v. Toledo Hospital
(1988),
Plaintiff’s second assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.