Taylor v. BurkhartTaylor v. Burkhart
Atty. Theodore L. Tsoras, Tsoras Law Office, P.O. Box 150, 54491 Lysien Road, Powhatan Point, Ohio 43942, for Plaintiffs-Appellants.
Atty. Bruce A. Curry, Atty. Trent M. Thacker, Curry, Roby & Mulvey Co., LLC, 30 Northwoods Blvd., Suite 300, Columbus, Ohio 43235, for Defendant-Appellee.
Dated: June 29, 2020
WAITE, P.J.
{¶1} In these consolidated cases, Appellants Sharon Taylor and Donna Steed appeal the May 9, 2019 Monroe County Common Pleas Court judgment entry denying their motion for leave to file an amended complaint and granting summary judgment to Appellee Cyril A. Burkhart (“Cyril A.”). For the reasons that follow, the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} This matter arises from an automobile accident that occurred in Monroe County on October 4, 2014. Both Appellants have continually resided in the State of Alabama. On the day of the accident, Cyril T. Burkhart (“Cyril T.”) was driving a 2008 Kia Optima owned by his father, Appellee, “Cyril A.” Cyril A. was not in the automobile at the time of the accident. Cyril T. struck the rear of Appellant Steed’s 2014 Mazda. Appellant Taylor was a passenger in Steed’s vehicle. Subsequently, on December 9, 2014, Cyril A.’s insurance company paid $22,900.00 to Appellant Steed for damage to her vehicle.
{¶3} On September 26, 2016, Appellants filed suit as pro se litigants naming Cyril A. as the sole defendant. Cyril A. filed an answer on October 31, 2016, denying all allegations and raising a number of affirmative defenses, including that the complaints
{¶4} On July 17, 2017, Cyril A. filed a motion to dismiss for failure to comply with discovery and for failure to prosecute. He also filed a notice of deposition for Appellants, which was set for January 25, 2018. On February 12, 2018, Cyril A. served his responses to Appellants’ second set of interrogatories and request for production of documents. Once again, he responded to several interrogatories that he was not the person involved in the automobile accident at issue. Despite this information, Appellants did not seek to amend their complaints. On April 17, 2018, counsel for Appellants voluntarily dismissed the complaints without prejudice pursuant to
{¶5} On January 11, 2019, Appellants, each represented by the same counsel, again filed separate complaints pursuant to
{¶7} Neither Appellant opposed the motion for summary judgment. Instead, they each filed motions for leave to file amended complaints and motions seeking an order amending the complaints filed in the 2016 case. They also sought to stay the motion for summary judgment, contending that summary judgment would be moot if their motions to amend were granted. Appellants also requested an oral hearing on their motions. They filed no affidavits or other evidentiary materials and no memorandums in opposition to summary judgment were filed.
{¶8} Cyril A. filed to oppose all of Appellants’ motions. On May 9, 2019, the court denied Appellants’ motions to stay and their motions to amend. The court granted the motion for summary judgment filed by Cyril A.
{¶9} Appellants filed these timely appeals which have been consolidated.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS’ [SIC] DISCRETION BY DENYING PLAINTIFFS’ REQUEST FOR AN EVIDENTIARY HEARING.
{¶10} In their first assignment of error, Appellants contend the trial court abused its discretion when it denied their motions for an evidentiary hearing. They claim the court
{¶11} Appellee asserts that an evidentiary hearing was not required. None of Appellant’s issues were appropriately raised by Appellants at the trial level because Appellants failed to oppose his motion for summary judgment. Hence, these claims are waived for purposes of appellate review.
{¶12} We review a denial of a request for an oral hearing on summary judgment for an abuse of discretion. Moellendick v. United Dairy, Inc., 7th Dist. Belmont No. 90-B-32, 1991 WL 161341, *2 citing Gates Mills Inv. Co. v. Village of Pepper Pike, 59 Ohio App.2d 155, 392 N.E.2d 1316 (8th Dist.2000), paragraph one of the syllabus. In order to determine whether the trial court abused its discretion, we may consider only the evidence presented to the trial court prior to its ruling on a motion for summary judgment. Gates Mills at 165.
{¶13} Attached to Cyril A.’s motion for summary judgment were two affidavits, one from Cyril A. and one from Cyril T. In his affidavit, Cyril A. stated he was the owner of the vehicle that was driven by Cyril T. but that he was not occupying the vehicle on the day
{¶14} In his affidavit, Cyril T. stated that he was driving the automobile involved in the accident in 2014, the automobile was his father’s car, and that the police report from the accident named him as the driver. Cyril T. also averred that he had not concealed himself, absconded or been imprisoned since the accident and he never received any notice of any lawsuit prior to September 26, 2017, when his father first mentioned the matter. Cyril T. also stated that he resides in Ohio and has never left the state except to travel to South Carolina for one week in 2015 and one week in 2018.
{¶15} Appellants’ March 19, 2019 request for oral hearing stated only:
Now comes the Plaintiffs, by and through counsel, Theodore L. Tsoras, and respectfully requests this Honorable Court Order that an oral hearing be set on Plaintiffs’ Motion for Leave to File Amended Complaints and Motion for an Order Amending the Complaint Filed in Case No. 2016-302. (Emphasis in original.)
(3/19/19 Request for Oral Hearing.)
{¶16} No supporting memorandum, affidavits, or other evidentiary materials were filed by Appellants to inform the court why an evidentiary hearing was necessary. While the trial court did not explicitly deny the motion, it is settled in Ohio that when a trial court
{¶17} Appellants’ first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
{¶18} Appellants contend they commenced or attempted to commence their action against Cyril T. in 2016 pursuant to
{¶19} A trial court’s decision regarding whether to amend a complaint to add or substitute new parties is reviewed under an abuse of discretion standard. Adlaka v. Quaranta, 7th Dist. Mahoning No. 09 MA 134, 2010-Ohio-6509, ¶ 25, citing Darby v. A-Best Products Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, paragraph one of the syllabus. Similarly, a review of the trial court’s decision regarding the motion to stay judgment on Appellants’ motion for summary judgment (construed as a
{¶20} Appellants refiled their 2016 actions in 2019 pursuant to
In any action that is 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, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff‘s representative may commence a new action within one year after the date of the reversal of the judgment or the plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. This division applies to any claim asserted in any pleading by a defendant.
(
{¶21} The Ohio Supreme Court has explained how the savings statute is applied:
This statute, the savings statute, is not a statute of limitations. Neither is
R.C. 2305.19 a tolling statute extending the period of a statute of limitations.R.C. 2305.19 can have no application unless an action was timely commenced, was dismissed without prejudice, and the applicable statute of limitations had expired by the time of such dismissal.
Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162, 163, 451 N.E.2d 1196 (1983).
{¶22} A “voluntary dismissal pursuant to
{¶23} Appellants seek to amend their 2019 complaints to change the party defendant from Cyril A. Burkhart to Cyril T. Burkhart. This amendment must relate back
{¶24}
A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to
Civ.R. 15(C) , or upon a defendant identified by a fictitious name whose name is later corrected pursuant toCiv.R. 15(D) .
{¶25}
Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2)
knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
{¶26} In this case the automobile accident at issue occurred on October 4, 2014. The statute of limitations on any claim against any party defendant expired on October 4, 2016.
{¶27} On March 19, 2019 Appellants filed one combined motion, captioned “Motion for Leave to File Amended Complaints and Motion for an Order Amending the Complaint Filed in Case No. 2016-302.” The motion read, in pertinent part:
[Plaintiffs request] this Honorable Court to grant Plaintiffs’ Motion for Leave to File Amended Complaints in cases 2019-008 and 2019-010, respectively and further requests this Honorable Court order Complaint filed in case
2016-302 be deemed amended to correct a misnomer and/or inadvertent mistake, correcting/substituting Cyril T. Burkhart for Cyril A. Burkhart as the Defendant pursuant to Ohio Civ. P. R. 15(C) .
(3/19/19 Motion to File Amended Complaints, pp. 1-2.)
{¶28} We note at the outset that Appellants argue both here and to the trial court that they seek to amend both the 2016 and 2019 complaints. The 2016 complaints were voluntarily dismissed. Appellants cannot amend complaints in a closed case that did not result in a final judgment. By law, the 2016 complaints cannot now be amended. The only significance of the 2016 complaints to this matter is whether the requested amendments to the 2019 complaints relate back to the original 2016 complaints in order to survive the expiration of the statute of limitations which occurred in October of 2016.
{¶29} Appellants do not invoke the saving statute in order to amend their complaints. Instead, they argue that they seek to correct an “inadvertent” “misnomer” regarding the name of the party, pursuant to
{¶30} Cyril A., although the owner of the vehicle, was not directly involved in the incident in question. Cyril T. does not dispute that he was driving one of the vehicles involved in the accident. Looking at the allegations in the underlying complaints, Appellants’ change in middle initial would, in fact, substitute one defendant for another—one who was not the driver of the vehicle involved in the accident for the person who was, in fact, driving. Therefore, Appellants seek to bring a new party into the action.
{¶31} The trial court in its May 9, 2019 judgment entry concluded:
This Court finds that Plaintiffs’ failure to file suit against the correct driver of the automobile within two years after the accident has extinguished their
claims and they cannot utilize the savings statute to name a new or substitute party to refiled complaints because they never commenced or attempted to commence an action against Cyril T. Burkhart prior to dismissal.
(5/9/19 J.E., p. 2.)
{¶32} In Cecil v. Cottrill, supra, the Supreme Court held that
{¶33} There is no dispute in this matter that both the 2016 and 2019 complaints relate to the same conduct, transaction or occurrence: the automobile accident that occurred on October 4, 2016. The question at issue in this case is whether the second
{¶34} In Cecil, the Supreme Court concluded:
It is apparent to us that
Civ.R. 3(A) read in pari materia withCiv.R. 15(C) does not require that service be made on a misnamed defendant before the expiration of the applicable statute of limitations. Rather, we find that the language, “within the period provided by law for commencing the action,” as used inCiv.R. 15(C) , includes the time for service allowed byCiv.R. 3(A) .
{¶35} The Cecil record showed that the misnamed defendant, James L. (the father) and the new party, James C. (the son) lived in the same family residence and that the lawsuit was served by certified mail two days after being filed. On the same day he was served, James L. informed James C. that a lawsuit that had been filed as a result of an automobile accident involving James C. Id.
{¶36} In the instant matter, Cyril T. was clearly aware of the October 4, 2014, automobile accident, as he was directly involved in driving one of the vehicles. However, the relevant inquiry is whether Cyril T. had notice of the “institution of the action” so that he would not suffer prejudice in maintaining a defense should he be substituted as a defendant.
{¶37} Contrary to Appellants’ assertion, and as this Court noted in Reighard, the fact that both Cyril A. and Cyril T. resided at the same address is not enough to infer notice of the lawsuit to Cyril T., particularly in light of his sworn affidavit stating otherwise.
{¶38} Appellants’ motion to amend was filed on March 19, 2019. This was two and one-half years after they filed their original lawsuits. Cyril T. was never added as a party prior to the expiration of the statute of limitations. Appellants clearly had notice that the wrong party had been named in their suits. Appellants have provided no explanation for their delay in seeking to amend their 2016 or 2019 complaints, nor did they oppose Appellee’s summary judgment in any fashion.
{¶39} Pursuant to
{¶40} Appellants’ second assignment of error is without merit and should be overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL ERRED AS A MATTER OF LAW BY GRANTING DEFENDANT CYRIL A. BURKHART‘S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF FACT EXIST TO BE DISCOVERED/TRIED ON WHEN CYRIL T. BURKHART RECEIVED NOTICE OF THE INSTITUTION OF CASE NO. 2016-302
{¶41} In their third assignment of error Appellants contend the trial court improperly granted Appellee’s summary judgment motion because a genuine issue of fact existed regarding whether Cyril T. had notice of the institution of the 2016 complaints.
{¶43} Before summary judgment can be granted, the trial court must determine that: (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material” depends on the substantive law of the claim being litigated. Hoyt, Inc., v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
{¶44} “[T]he moving party bears the initial responsibility of informing the trial court of the basis of the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id at 293. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party’s favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶46} Appellants allege the trial court granted summary judgment in favor of Appellee based on a flawed analysis of Appellants’ motion to amend their complaint. We have largely addressed the reasons why Appellants’ assertion is incorrect in the earlier assignments of error. Specifically, Appellee produced affidavits of both himself and his son, Cyril T., demonstrating no genuine issues of material fact exist regarding the claims asserted in Appellants’ complaints. Appellee presented evidence in the record, including discovery responses, showing Appellants were informed that they had sued the wrong party, and provided a copy of the initial police report which listed Cyril T. as the driver of the vehicle. Appellee also produced uncontested evidence that Cyril T. had no knowledge that Appellants had filed lawsuits in this matter.
{¶47} At that point Appellants had the reciprocal burden to produce material facts for the record demonstrating a genuine issue for trial. As noted, Appellants never opposed Appellee’s motion for summary judgment. Instead, Appellants filed an unsupported motion to stay a ruling on summary judgment. Appellants did not dispute the statements in the affidavits or direct the court to other facts in the record which would render summary judgment improper.
When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶49} The motion to stay simply sought to defer a ruling on summary judgment. Appellants did not attach any affidavits to justify an inability to support their opposition to summary judgment. In the absence of such an affidavit, the trial court may proceed directly to the merits of the summary judgment motion. Ramsey v. Edgepark, Inc., 66 Ohio App.3d 99, 104, 583 N.E.2d 443 (10th Dist.1990). Moreover, an appellate court cannot grant relief under
{¶50} The trial court found “no genuine issue of material fact exists and Defendant is entitled to judgment as a matter of law because Plaintiffs did not name the correct party
{¶51} Appellants alleged in their complaints that Cyril A. Burkhart was negligent as the driver of the automobile. They had the burden of proving that Cyril A. had a legal duty to Appellants; that Cyril A. breached that duty; and that Appellants’ injuries were the proximate cause of that breach. Appellants did not establish the requisite elements of negligence. They alleged their claims for driver negligence against the wrong party and have acknowledged that Cyril A. was not the alleged tortfeasor in the record. Moreover, Appellants failed to commence or attempt to commence an action against Cyril T., the proper party, within the statute of limitations. They have failed to produce evidence that Cyril T. knew suit had been filed. They are precluded from proceeding with their claims as any amendment does not properly relate back to the 2016 complaints under the saving statute and civil rules as earlier discussed.
{¶52} Therefore, a review of the record reveals the trial court properly granted summary judgment to Appellee. Appellants’ third assignment of error is without merit and should be overruled.
Conclusion
{¶53} Based on the foregoing, Appellants’ assignments of errors are without merit and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
D’Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.