TAMMY HAMRICK v. WILLIAM A. RAMALIA
No. 97385
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 3, 2012
[Cite as Hamrick v. Ramalia, 2012-Ohio-1953.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-756847
BEFORE: Blackmon, A.J., Stewart, J., and Jones, J.
RELEASED AND JOURNALIZED: May 3, 2012
Daniel P. Lang
5579 Pearl Road, Suite 203
Parma, Ohio 44129
Michael V. Heffernan
75 Public Square, Suite 700
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Christopher J. Ankuda
815 Superior Avenue, East
1615 Superior Building
Cleveland, Ohio 44114
{1} Appellant Tammy Hamrick appeаls the trial court‘s dismissal of her complaint with prejudice and assigns the following error for our review:
I. The trial court abused its discretion in granting defendant‘s motion to dismiss under Civ.R. 12(B)(6) .
{2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{3} On June 14, 2004, Hamrick‘s and Ramalia‘s motor vehicles collided. On June 12, 2006, Hamrick filed a complaint, hereinafter referred to as Hamrick I, against Ramalia fоr injuries allegedly sustained in the collision. On June 4, 2008, the parties filed a joint stipulation dismissing Hamrick I without prejudice.
{4} On June 28, 2009, Hamrick refiled her complaint, hereinafter referred to as Hamrick II, against Ramalia. On June 7, 2010, Hamrick voluntarily dismissed Hamrick II by means of a
{5} On July 7, 2011, Ramalia filed a motion to dismiss Hamrick III. In the motion, Ramalia argued Hamrick III was beyond the two-year statute of limitations and beyond the additional one year allowed under Ohio‘s Saving‘s Statute. Hamrick oppоsed the motion, but on September 7, 2011, the trial court granted Ramalia‘s motion to dismiss Hamrick III with prejudice.
{6} In the sole assigned error, Hamrick argues the trial court errеd in dismissing Hamrick III with prejudice. We disagree.
{7} As an appellate court, we review a trial court‘s dismissal of a case with prejudice for an abuse of discretion. Autovest, L.L.C. v. Swanson, 8th Dist. No. 88803, 2007-Ohio-3921, at ¶ 18. An abuse of disсretion is more than a mere error in judgment but connotes an attitude that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{8} The instant casе requires interpretation of two separate provisions,
{9}
(A) Voluntary dismissal: effect thereof;
(1) By plaintiff; by stipulation. Subject to the provisions of
Civ.R. 23(E) ,Civ.R. 23.1 , andCiv.R. 66 , a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the nоtice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.
(2) By order of court. Except as provided in division (A)(1) of this rule, a claim shаll not be dismissed at the plaintiff‘s instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff‘s mоtion to dismiss, a claim shall not be dismissed against the defendant‘s objection unless the counterclaim can remain pending for independent аdjudication by the court. Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.
{10} In Olynyk v. Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, the Ohio Supreme Court explained the operation of
{11} A notice of dismissal pursuant to
{12} The other two avenues for dismissal without prejudice under
{13} Applying the above to the instant case, the stipulated dismissal of Hamrick I was not a unilateral dismissal. This means Hamrick still had the option to use her onetime
{14} However, the double-dismissal rule is only one half of the equation here. Hamrick is still faced with the statute of limitations. A dismissal without prejudice means the dismissal has no res judicata effect, but it does not toll the statute of limitations or otherwise extend the time for refiling. Wolfe v. Priano, 5th Dist. No. 2008-CA-8, 2009-Ohio-2208, citing Brubaker v. Ross, 10th Dist. No. 01-AP-1431, 2002-Ohio-4396.
{15}
{16} After voluntarily dismissing Hamrick II, pursuant to
{17} The Ohio‘s Saving‘s Statute,
In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives mаy commence a new action within one year after such date. * * *
{18} The savings statute contemplates the right of the plaintiff “to commеnce a new action” within one year of a failure otherwise than on the merits. Graf v. Cirino, 8th Dist. No. 96011, 2011-Ohio-3473, citing Cero Realty Corp. v. Am. Mfrs. Ins. Co., 171 Ohio St. 82, 167 N.E.2d 774 (1960). Indeed, ”
{19} In Thomas v. Freeman, 79 Ohio St.3d 221, 227, 1997-Ohio-395, 680 N.E.2d 997, the Ohio Supreme Court indicated that “the savings statute can be used only once to re-file a case.” This court has сonsistently held the same. See e.g., Conway v. RPM, Inc., 8th Dist. No. 88024, 2007-Ohio-1007; Duncan v. Stephens, 8th Dist. No. 83238, 2004-Ohio-2402.
{21} Savings statutes operate to give a plaintiff a limited period of time in which to re-file a dismissed claim that would otherwise be time-barred. Internatl. Periodical Distrib. v. Bizmart, 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7. The savings statute can be used only once, because otherwise, a plaintiff could infinitely refile her action, and effectively eliminate statutеs of limitations. Duncan at ¶ 21.
{22} Because Hamrick utilized the savings statute to re-file her complaint in May 2009, she may not again take advantage of the savings statute to institute an action that is well beyond the statute of limitations. As such, the trial court did not err in dismissing the action with prejudice. Accordingly, we ovеrrule the sole assigned error.
{23} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and LARRY A. JONES, SR., J., CONCUR