INTERNATIONAL PERIODICAL DISTRIBUTORS, APPELLANT, v. BIZMART, INC., D.B.A. OFFICEMAX, APPELLEE.
No. 2001-0615
Supreme Court of Ohio
June 12, 2002
95 Ohio St.3d 452 | 2002-Ohio-2488
Submitted February 26, 2002. APPEAL from the Court of Appeals for Cuyahoga County, No. 77787.
SYLLABUS OF THE COURT
The saving statute to be applied to a commercial sales action is
MOYER, C.J.
{¶1} International Periodical Distributors (“International“) appeals the judgment of the Cuyahoga County Court of Appeals affirming the trial court‘s summary judgment for defendant, Bizmart, Inc., d.b.a. OfficeMax, in a breach-of-contract action.
{¶2} On January 4, 1995, International filed a breach-of-contract action complaint against Bizmart to recover $85,626 for magazines that International had sold and delivered to Bizmart over the course of several years. Bizmart filed an answer and deposed International‘s accounts receivable manager in an attempt to verify when the deliveries had been made to Bizmart. The manager was questioned regarding International‘s account ledger that identified the unpaid amounts for magazines delivered to Bizmart between 1991 and September 1993. On December 3, 1996, International voluntarily dismissed its action against Bizmart without prejudice.
{¶3} On December 2, 1997, International refiled its breach-of-contract action against Bizmart that it had voluntarily dismissed in December 1996.
{¶4} Bizmart filed a motion for summary judgment asserting that International‘s claim was barred by the four-year statute of limitations in
{¶5} The court of appeals affirmed, holding that a separate limitations period applies to each delivery of magazines between August 1991 and September 1993. The parties do not appeal this holding. The court of appeals applied the saving provisions of
{¶6} The issue before this court is whether
{¶7} Savings statutes may apply when a claim filed within the time required by a statute of limitations is dismissed without prejudice but the statute of limitations on the claim has already expired. Savings statutes operate to give a plaintiff a limited period of time in which to refile a dismissed claim that would otherwise be time-barred. We have stated that savings statutes should be liberally construed so that cases are decided on the merits rather than upon technicalities of procedure. See Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co. (1960), 171 Ohio St. 82, 85, 12 O.O.2d 92, 167 N.E.2d 774; Greulich v. Monnin (1943), 142 Ohio St. 113, 116, 26 O.O. 314, 50 N.E.2d 310.
{¶8} The claims asserted by International were for transactions in goods and were therefore subject to the provisions of Article II of the Uniform Commercial Code (“UCC“), codified in Ohio as
{¶9} The issue is which saving statute should be applied to the claim for all deliveries made prior to December 3, 1992.
{¶10} International argues that the general saving statute,
{¶11}
{¶12} “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 * * * may commence a new action within one year after such date.”
{¶13} International argues that
{¶14} The pertinent sections of
{¶15} “(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. * * *
{¶16} “* * *
{¶17} “(C) Where an action commenced within the time limited by division (A) of this section is so terminated as to leave available a remedy by another action for the same breach, such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.”
{¶18} Bizmart contends that because this is a commercial sales case, the UCC‘s saving provision,
{¶19} International argues that
{¶20} Our reading of
{¶21} Having verified the saving function of
{¶22} “(A) Chapters 1301., 1302., 1303., 1304., 1305., 1306., 1307., 1308., 1309., and 1310. of the Revised Code shall be liberally construed and applied to promote their underlying purposes and policies.
{¶23} “(B) Underlying purposes and policies of those chapters are the following:
{¶24} “(1) To simplify, clarify, and modernize the law governing commercial transactions;
{¶25} “(2) To permit the continued expansion of commercial practices through custom, usage, and agreement of the parties;
{¶26} “(3) To make uniform the law among the various jurisdictions.”
{¶27} Moreover, the Official Comment to UCC Section 2-725 (
{¶28} The purposes served by adoption of
{¶29} The trial court did not err when it applied
{¶30} It should be noted that International‘s complaint would have been barred even if International had refiled before the six-month deadline. The saving provision of
{¶31} For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in judgment only.
DOUGLAS, J., dissents.
Newman & Newman, Joel I. Newman and Paula J. Goodrich, for appellant.
Baker & Hostetler, L.L.P., and Kyle B. Fleming, for appellee.