KIMBERLY CRUMP, et al. v. DR. ROD E. BATIE
C.A. CASE NO. 2012 CA 69
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
June 7, 2013
2013-Ohio-2345
T.C. NO. 12CV269 (Civil appeal from Common Pleas Court)
KAREN L. CLOUSE, Atty. Reg. No. 0037294, 2075 Marble Cliff Office Park, Columbus, Ohio 43215 Attorney for Defendant-Appellee
O P I N I O N
Rendered on the 7th day of June, 2013.
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Kimberly and
{¶ 2} The Crumps initially filed their complaint against Batie on August 17, 2010, and then they voluntarily dismissed it without prejudice, pursuant to
{¶ 3} In sustaining Batie’s motion for summary judgment, the trial court indicated as follows:
* * * Plaintiffs filed their original lawsuit against Dr. Batie on August 17, 2010. The case was voluntarily dismissed by plaintiffs pursuant to
Civ.R. 41(A)(1) on March 15, 2011. Plaintiffs re-filed this claim on March 16, 2012, therefore, this new suit was filed more than one year after plaintiffs’ original action failed otherwise than on the merits and after the statute of limitations for bringing a medical negligence action against Dr. Batie had expired.Upon a review of the pleadings, the Court finds, the evidence and facts of this case demonstrate that no genuine issue of material facts exists with respect to this case. The statue of limitations and the saving statute expired before the plaintiff[s] re-filed their complaint, therefore, defendant is
entitled to judgment in his favor as a matter of law.
{¶ 4} On August 31, 2012, the Crumps filed, pursuant to
{¶ 5} The Crumps assert one assigned error herein as follows:
“THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE’S MOTION FOR SUMMARY JUDGMENT.”
{¶ 6} The Crumps assert that their initial complaint “was dismissed at the request of Appellant by the Court, according to the docket of entries at Exhibit A, on March 17, 2011. On June 27, 2012, Appellee filed a motion for summary judgment. A motion the undersigned did not see prior to the trial court’s ruling.” The Crumps assert in a footnote that “confusion may have occurred because Appellee’s previous counsel was suspended from the practice of law on November 3, 2011. It is believed that mailings from the court may have been erroneously sent to previous counsel.” The Crumps assert that, following the trial court’s grant of summary judgment, they moved the court for relief from judgment “for the reason the undersigned did not receive a copy of or file opposition to” Batie’s motion for summary judgment. Finally, the Crumps assert that “a factual issue exists concerning whether the case was refiled within a year of voluntary dismissal. The answer to this inquiry will depend on whether the starting point for calculation is March 15, 2011 or March 17, 2011.” They contend that the “answer may also be effected by whether Appellee was in Ohio at all time[s] between March 15, 2011 and March 16, 2012. If he was
{¶ 7} As this Court has previously noted:
Summary judgment is appropriate when: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., Inc., (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; citing
Civ. R. 56(C) . Huntington National Bank v. Hoffer, 2d Dist. Greene No. 2010-CA-31, 2011-Ohio-242, ¶ 5.
{¶ 8} As this Court has further noted:
Appellate courts review a trial court‘s entry of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). PNC Bank, N.A. v. Craig, 2d Dist. Montgomery No. 25010, 2012-Ohio-5410, ¶ 5.
{¶ 10} Batie does not dispute that the Crumps’ initial complaint was filed within the statute of limitations.
{¶ 11} Ohio‘s savings statute provides in relevant part that “[i]n any action that is commenced * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may
{¶ 12}
In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday.
{¶ 13} We agree with the Seventh District’s rationale in Schon v. National Tea Co., 19 Ohio App.2d 222, 224, 250 N.E. 2d 890 (7th Dist. 1969), that in computing time in a leap year such as 2012, which contains 366 days, “the better rule in the interpretation of the legislative intent relative to the meaning of ‘year’ as used in Section 2305.19, Revised Code, is that rule which automatically takes into account the quadrennial fluctuation contained in
{¶ 14} As Batie asserts, and the trial court’s docket and the clerk’s time stamp reflect, the Crumps filed their voluntary dismissal on March 15, 2011, which was a Tuesday, and the anniversary date thereof was Thursday, March 15, 2012, which was neither a weekend or a legal holiday. As the trial court determined, the Crumps’ March 16, 2012 complaint was filed more than a year after their original action failed otherwise than on the merits and after the one year statute of limitation expired.
{¶ 15} Regarding the Crumps’ assertion that the application of the savings statute is tolled by
When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person‘s absence or concealment shall not be computed as any part of a period within which the action must be brought.
As this Court has previously noted,
{¶ 16} We note that, while the Crumps’ notice of appeal and assigned error is limited to the trial court’s decision on Batie’s motion for summary judgment, both parties in their briefs address the trial court’s decision on the Crumps’
It has been the longstanding rule in Ohio that a direct appeal divests a trial court of jurisdiction to rule on a Civ .R. 60(B) motion for relief from judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63 Ohio St.3d 179, 181, 586 N.E.2d 105, citing Klinginsmith v. Felix (1989), 62 Ohio App.3d 147, 150-151, 574 N.E.2d 1142. “Jurisdiction may be conferred on the trial court only through an order by the reviewing court remanding the matter for consideration of the
Civ.R. 60(B) motion.” Howard v. Catholic Social Servs. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 147, 637 N.E.2d 890. Wells Fargo Fin. Ohio 1 Mtge. Grp. v. Lieb, 2d Dist. Montgomery No. 23855, 2010-Ohio-6111, ¶ 10.
{¶ 17} The Crumps did not request a remand from this Court to permit a ruling on their
{¶ 18} Finally, we note that the Crumps’ suggestion that “mailings from the Court
{¶ 19} There being no genuine issue of material fact, the Crumps’ assigned error lacks merit, and it is overruled. The judgment of the trial court is affirmed.
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Leo P. Ross
Karen L. Clouse
Hon. Douglas M. Rastatter