Byers v. Robinson, 2008 Ohio 4833 (Ohio App. 9/23/2008)
| Decision Date | 23 September 2008 |
| Docket Number | No. 08AP-204.,08AP-204. |
| Parties | James L. Byers et al., Plaintiffs-Appellants, v. Jason P. Robinson et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Appeal from the Franklin County Court of Common Pleas, (C.P.C. No. 07CVC04-4694).
Buckley King, and Thomas I. Blackburn, for appellants.
Freund, Freeze & Arnold, and Carl A. Anthony, for appellees.
{¶1} Plaintiffs-appellants, James L. Byers and Corrine Byers, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Jason P. Robinson and Katrina E. Robinson. Because the trial court did not err by granting summary judgment in favor of defendants, we affirm.
{¶2} On December 28, 2002, a vehicle driven by Mr. Robinson, which was owned by Ms. Robinson, collided with a vehicle driven by Mr. Byers, thereby allegedly resulting in injuries to Mr. Byers. Almost two years after the collision, on December 17, 2004, alleging negligence, negligent entrustment, and loss of consortium, plaintiffs sued defendants in the Franklin County Court of Common Pleas. Approximately 14 months after plaintiffs commenced their suit, on February 27, 2006, pursuant to Civ.R. 41(A)(1)(a), plaintiffs dismissed without prejudice their action against defendants.
{¶3} Almost one year after plaintiffs dismissed without prejudice their action against defendants, on February 12, 2007, plaintiffs' attorney sustained a medical condition that later required emergency treatment, hospitalization, and a short convalescence. In early March 2007, plaintiffs' attorney returned to work on a full-time basis. After returning to work, plaintiffs' attorney discovered that the re-filing deadline for plaintiffs' suit under R.C. 2305.19, Ohio's "savings statute," had expired. On April 4, 2007, plaintiffs, through counsel, re-filed their suit against defendants.
{¶4} On May 15, 2007, claiming that, as a matter of law, defendants were entitled to judgment because plaintiffs failed to commence their suit within statutorily specified periods under R.C. 2305.10 and 2305.19, defendants moved the trial court for summary judgment. Filing a memorandum in opposition and a surreply, plaintiffs contested defendants' motion for summary judgment.
{¶5} On July 17, 2007, claiming plaintiffs raised issues that required additional discovery, defendants filed a notice of withdrawal of their summary judgment motion and reserved the right to re-file their summary judgment motion after additional discovery was conducted. Approximately seven months later, on February 12, 2008, besides adjudging discovery-related motions by the parties, the trial court granted defendants' summary judgment motion, rendered final judgment against plaintiffs, and dismissed plaintiffs' claims.
{¶6} From the trial court's judgment granting summary judgment in favor of defendants and dismissing plaintiffs' claims, plaintiffs appeal and advance two errors for our consideration:
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DECIDING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT, AS SAID MOTION WAS IMPROPERLY WITHDRAWN, WITHOUT LEAVE OF COURT, BY DEFENDANTS-APPELLEES VIA A JULY 17, 2007 NOTICE OF WITHDRAWAL, WHICH CONSTITUTED A WITHDRAWAL OF THE SAID MOTION WITH PREJUDICE, SUCH THAT THE TRIAL COURT RULED UPON A NON-PENDING, NON-EXISTENT MOTION.
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY MISAPPLYING THE DOCTRINE OF EQUITABLE TOLLING UNDER THE FACTS OF THIS CASE, ARBITRARILY CALCULATING THE PERIOD OF TOLLING AND THE TIME IN WHICH TO REFILE THE ACTION BY A MECHANICAL FORMULA RATHER THAN AN EQUITABLE REASONABLE TIME APPROACH, RESULTING IN THE ERRONEOUS GRANTING OF APPELLEES' MOTION FOR SUMMARY JUDGMENT, TO WHICH DEFENDANTS-APPELLEES WERE NOT ENTITLED, AS A MATTER OF LAW.
{¶7} Defendants did not cross-appeal. However, defendants assert the following cross-assignment of error: "The trial court erred in determining that the circumstances of this case warrant application of the doctrine of equitable tolling at all."
{¶8} Plaintiffs' first assignment of error resolves to whether the trial court prejudicially erred because it adjudged a summary judgment motion that was no longer before the court. A correlative issue concerns whether defendants improperly withdrew their summary judgment motion by means of a notice of withdrawal, rather than by seeking leave of court.
{¶9} Relying on Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, at ¶15-16, defendants assert that plaintiffs' first assignment of error requires appellate review under an abuse-of-discretion standard. See, e.g., Harmon, at ¶16 (). We disagree.
{¶10} In Harmon, claiming that the appellate court should not have denied his motions for leave to amend his petitions, to continue the case to permit further investigation of chads in voting machines, and to compel the board of elections' former director to testify, the appellant, an unsuccessful candidate for a judgeship, asserted the appellate court erred in its procedural rulings. Id. at ¶15. By this challenge, the appellant in Harmon essentially attacked the appellate court's exercise of discretionary authority in its role as a trial court, and, as a result, the Supreme Court of Ohio reviewed the appellant's claims under an abuse-of-discretion standard. Id. at ¶16.
{¶11} "The abuse of discretion standard should be used when the trial court makes discretionary decisions based on such things, for example, as evaluating the credibility of witnesses * * *; ruling on the admission of evidence; making factual determinations * * *; and whether to appoint a receiver * * *." Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346. (Citations omitted.)
{¶12} Id. at 346.
{¶13} Here, plaintiffs' correlative issue concerns whether, as a matter of law, defendants' actions were sufficient under the Ohio Rules of Civil Procedure to effect withdrawal of their previously filed summary judgment motion. Stated differently, plaintiffs' first assignment of error raises this procedural matter: whether, under the Ohio Rules of Civil Procedure, a party must seek leave of court to withdraw a previously filed summary judgment motion, or whether a party may effect withdrawal of a previously filed summary judgment motion by filing a notice of withdrawal. Such issues raise questions of law, which are subject to de novo review. See Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. (1992), 64 Ohio St.3d 145, 147 (); Castlebrook, Ltd., at 346. Furthermore, under Ohio law, appellate review of a lower court's granting of summary judgment also is de novo. See Cyrus v. Yellow Transp., Inc., 169 Ohio App.3d 761, 2006-Ohio-6778, at ¶5; Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, at ¶27.
{¶14} Accordingly, we find that a de novo standard of appellate review applies to plaintiffs' first assignment of error.
{¶15} Weissenberger's Ohio Civil Procedure Litigation Manual (2008 Ed.) 73 observes that "there is no express provision in the Rules which permits motions to be amended or supplemented, and the practice is usually within the discretion of the court or may be provided for by local rule." See, also, McCormac & Solimine, Ohio Civil Rules Practice with Forms (2008 Ed.) 9-12, Section 9.12.
{¶16} Section 22 of 56 American Jurisprudence 2d (1971), 18, Motions, Rules, and Orders, declares:
Generally, a party who makes a motion during the course of a trial may withdraw it at any time before the court has made an order responsive to the motion, at least where nothing has occurred to prejudice the opposing party by the motion's withdrawal. But leave of court is required in some jurisdictions before a motion may be withdrawn. The only effect of a withdrawal of a motion is to leave the record as it stood prior to its filing.
Id. at 18. (Footnotes omitted.)
{¶17} Here, Civ.R. 56 is silent as to whether a motion for summary judgment may be withdrawn by serving notice upon the court and parties, or whether a party seeking to withdraw a summary judgment motion must seek leave of court to effect withdrawal of a motion for summary judgment. See, generally, Civ.R. 56. Accord Gedeon v. Libby (1991), 73 Ohio App.3d 627, 629 ().
{¶18} Our review of the Local Rules of the Franklin County Court of Common Pleas, General Division, also reveals no mention as to whether a motion for summary judgment may be withdrawn by serving notice upon the court and parties, or whether a party seeking to withdraw a summary judgment motion must seek leave of court to effect withdrawal of a motion for summary judgment.
{¶19} Plaintiffs urge us to follow the Eighth District Court of Appeals' decision in Gedeon, and conclude that defendants were required to seek leave of court to effect withdrawal of their summary judgment motion. In Gedeon, claiming summary judgment motions were automatically withdrawn upon filing of an...
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...the doctrine of equitable tolling does not apply if a litigant has failed to diligently pursue his rights. See, e.g., Byers v. Robinson, No. 08AP-204, 2008 Ohio 4833, at ¶ 52 (Ohio Ct. App. Sept. 23, 2008)("'Generally, a litigant seeking equitable tolling bears the burden of establishing.........