622 N.E.2d 1163 | Ohio Ct. App. | 1993
This matter is before this court upon the appeal of Brad Malatesta, appellant, from the January 4, 1993 entry of the Franklin County Court of Common Pleas which granted defendants-appellees' motion to dismiss. On appeal, appellant sets forth the following assignment of error:
"The trial court erred in granting Defendant's Motion To Dismiss and in specifically finding that Plaintiff's action was untimely filed pursuant to R.C. Section
The facts of this case are as follows: on or about January 3, 1990, appellant responded to a fire at the Worthington Garden apartments in Columbus, Ohio. Appellant's breathing apparatus and communication equipment allegedly failed to properly function. As a result, appellant sustained injuries and filed a complaint on January 3, 1991, within the one-year statute of limitations that was provided for in R.C.
"In an action commenced, or attempted to be commenced, * * * 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. * * *"
It is not disputed that appellant had timely commenced an action against appellee. Furthermore, appellant's voluntary dismissal on February 20, 1991 was "otherwise than upon the merits," and was filed after the one-year statute of limitations had expired. Accordingly, appellant was clearly within the provisions of the savings clause provided for in R.C.
However, on August 27, 1991, the Ohio Supreme Court decidedBrady v. Safety-Kleen Corp. (1991),
Parties seeking refuge under R.C.
"* * * The first one of these is either the commencement or the attempted commencement of the action before the expiration of the statutory limitations period for such actions. The second is a failure otherwise than upon the merits. See DiCello v.Palmer (Feb. 12, 1980), Franklin App. No. 79AP-402, unreported, *722
at 3. * * *" Branscom v. Birtcher (1988),
It is undisputed that appellant timely commenced his first action on January 3, 1991. Thereafter, appellant voluntarily dismissed his complaint on February 20, 1991. A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes "a failure otherwise than upon the merits within the meaning of the savings statute, R.C.
Appellees, on the other hand, argue that the two-year statute of limitations pursuant to R.C.
"As noted below, however, the Supreme Court of Ohio has declared all of R.C.
"During the pendency of this matter the Supreme Court of Ohio declared R.C.
Both parties cite many cases involving the retroactive and prospective applications of statutes. However, R.C.
Appellant also believes that this action should be decided on its merits. He argues that the filing of his complaint, after the statute of limitations had run, was a minor and inadvertent violation of the rules. Appellant cites Johnson v. Dept. ofMental Retardation Dev. Disabilities (1987),
Accordingly, we find that the applicable statute of limitations to the instant action is the two-year statute of limitations provided for in R.C.
Judgment affirmed.
DESHLER and MARTIN, JJ., concur.
JOHN D. MARTIN, J., of the Fairfield County Court of Common Pleas, sitting by assignment.