Cerney v. Norfolk & W. Ry. Co.

• Decision Date: 05 June 1995
• Docket Number: 67649,Nos. 67010,s. 67010
• Citation: 104 Ohio App.3d 482,662 N.E.2d 827
• Court: Ohio Court of Appeals
• Parties: CERNEY, Appellant and Cross-Appellee, v. NORFOLK & WESTERN RAILWAY CO., et al., Appellees and Cross-Appellants. *

Page 482

104 Ohio App.3d 482

662 N.E.2d 827

CERNEY, Appellant and Cross-Appellee, v. NORFOLK & WESTERN RAILWAY CO., et al., Appellees and Cross-Appellants. ^*

Nos. 67010, 67649.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided June 5, 1995.

Civil Appeal from the Common Pleas Court, Nos. CV-256351 and CV-194859.

Spangenberg, Shibley, Traci, Lancione & Liber and Peter H. Weinberger; Steuer, Escovar & Berk Co., L.P.A., and Thomas J. Escovar, Cleveland, for appellant and cross-appellee.

Gallagher, Sharp, Fulton & Norman, Forrest A. Norman and Jay Clinton Rice, Cleveland, for appellees and cross-appellants.

SPELLACY, Presiding Judge.

In case No. 67010, Roosevelt Cerney appeals the dismissal with prejudice of his complaint brought under the Federal Employers' Liability Act ("FELA"). Cerney sought recovery for injuries received due to the alleged negligence of his employer, Norfolk & Western Railway Company and Norfolk Southern Corporation ("Norfolk").

In case No. 67649, Norfolk appeals the grant of Cerney's Civ.R. 60(B) motion vacating the dismissal of Cerney's complaint with prejudice. The case then was reinstated.

The two cases have been consolidated upon appeal.

Cerney assigns the following assignments of error for review:

"I. The trial court erred in granting defendant/appellees' motion for dismissal in C.P. Case No. 256351, as defendant/appellee was barred from claiming defense of limitation of actions by the doctrines of estoppel and/or waiver.

"II. The trial court erred in holding that the three-year limitation of actions set forth in the F.E.L.A. statute was not tolled by the filing of the original action."

Finding Cerney's appeal to lack merit, we affirm the judgment of the trial court.

I

On August 9, 1988, Cerney was injured when he was thrown from a track sweeper which derailed. Cerney filed suit on August 8, 1990, pursuant to FELA Section 51 et seq., Title 45, U.S.Code, alleging that his injuries were caused by Norfolk's negligence. FELA's statute of limitations provides that a suit must be commenced within three years from the day the cause of action accrued.

After numerous delays, the case was set for trial on August 11, 1992. Cerney's new counsel filed a motion for continuance. On August 4, 1992, a pretrial conference was held. The trial court refused to grant the motion for continuance because the case had been pending for two years and it was required by the rules of the Supreme Court to resolve personal injury cases within two years. The trial court then informed Cerney's counsel of the option of voluntarily dismissing the case without prejudice and refiling, if necessary, within one year. Cerney filed a notice of voluntary dismissal on August 10, 1992.

After a settlement agreement could not be reached, Cerney refiled his complaint on August 6, 1993. Norfolk filed a motion to dismiss, asserting that the complaint was filed outside the three-year statute of limitations provided for under FELA. Norfolk argued that Ohio's savings statute, R.C. 2305.19, did not apply pursuant to Burnett v. New York Cent. Ry. Co. (1965), 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941. In Burnett, the United States Supreme Court stated that the Ohio savings statute could not be used to extend FELA's statute of limitations. On December 22, 1993, Cerney filed a motion for declaratory judgment seeking to have the voluntary dismissal declared void ab initio. Cerney argued that the judgment was void because the voluntary dismissal was filed with the understanding that the matter could be refiled pursuant to the savings statute. Under Burnett such a refiling was not permitted and, therefore, the understanding upon which the dismissal was predicated was not possible.

On February 15, 1994, the trial court denied Cerney's motion for declaratory judgment and granted Norfolk's motion to dismiss with prejudice. Cerney appealed from this ruling.

On February 25, 1994, Cerney filed a motion for relief from judgment pursuant to Civ.R. 60(A) and (B). The trial court ruled Civ.R. 60(A) to be inapplicable as the dismissal was a result of an error of judgment by Cerney's counsel and not a clerical mistake in the judgment. The trial court granted the motion based on Civ.R. 60(B)(5). Norfolk appealed from the judgment entry.

II

In his first assignment of error, Cerney contends that the trial court erred in dismissing the case with prejudice as Norfolk was barred from asserting the defense of the statute of limitations. Cerney maintains that Norfolk was equitably estopped from claiming the defense or had waived the issue. Cerney argues that Norfolk acquiesced to the voluntary dismissal as it raised no objections at the final pretrial. Norfolk also consented to the journal entry dismissing the case.

The doctrine of equitable estoppel has been employed to bar reliance on the defense of statute of limitations. Glus v. Brooklyn E. Dist. Terminal (1959), 359 U.S. 231, 233, 79 S.Ct. 760, 762, 3 L.Ed.2d 770, 772. In Atkins v. Union Pacific RR. Co. (C.A.9, 1985), 753 F.2d 776, the court held:

"[E]quitable estoppel will not apply to a claim such as this one unless the plaintiff shows either (1) an affirmative statement that the statutory period to bring an action was larger than it actually was, (2) promises to make a better settlement of the claim if plaintiff did not bring the threatened suit, or (3) similar representations or conduct on the part of the defendants." Id. at 777.

The parties stipulated that Norfolk's attorney neither acquiesced in nor objected to the suggestion Cerney could dismiss his case and refile within one year. There is nothing in the record indicating that Norfolk was aware of the Burnett case prior to the dismissal. Cerney can point to no affirmative statement, representation, conduct, or promise on the part of Norfolk which induced him to voluntarily dismiss his case. Further, Norfolk could not consent to the judgment entry as the dismissal was effective at the point Cerney filed his notice of dismissal, not when the judgment was entered. Civ.R. 41(A)(1).

Cerney also argues that Norfolk waived the defense of the statute of limitations. Cerney never made this argument to the trial court. This court can review only those issues presented below. Because the issue was raised for the first time on appeal, this court declines to address it. Garg v. Venkataraman (1988), 54 Ohio App.3d 171, 173, 561 N.E.2d 1005, 1008-1009.

Cerney's first assignment of error lacks merit.

III

In his second assignment of error, Cerney asserts that the trial court erred in holding the statute of limitations was not tolled by the filing of his original action. Cerney argues that Burnett does not apply, as the statements regarding the saving statutes are dicta and not the holding of the case.

The Burnett court pointed out that savings statutes allow a plaintiff a specified period of time in which to bring a second action after the first timely action is dismissed for procedural reasons. If Burnett's action had arisen under Ohio law, the savings statute would have been applicable. The court went to state:

"This does not mean that we can accept petitioner's argument that the federal limitation provision incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States. The scope of such statutes and the length of additional time they allow vary considerably from State to State. [Footnote omitted.] Moreover, not all States have saving statutes. [Footnote omitted.] This Court has long recognized that the FELA 'has a uniform operation, and neither is nor can be deflected therefrom by local statutes.' Panama R. Co. v. Johnson, 264 U.S. 375, 392, 44 S.Ct. 391, 396, 68 L.Ed. 748 ; Second Employers' Liability Cases [Mondou v. New York, N.H. & H.R. Co.], 223 U.S. 1, 51, 55, 32 S.Ct. 169, 175, 177, 56 L.Ed. 327 [346-347, 348]. This Court has also specifically held that '[t]he period of time within which an action may be commenced is a material element in [a] uniformity of operation' which Congress would not wish 'to be destroyed by the varying provisions of the State statutes of limitation.' Engel v. Davenport, 271 U.S. 33, 39, 46 S.Ct. 410, 413, 70 L.Ed. 813 [817-818]. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity." Id., 380 U.S. at 432-433, 85 S.Ct. at 1057, 13 L.Ed.2d at 948.

The specific language of the Burnett opinion does not allow the use of savings statutes to extend the time in which an action may be brought. The court quotes the holding of Engel to underscore the need for uniformity in the period of time in which suit can be brought. The Burnett court affirmatively rejected the use of saving statutes in FELA actions.

The trial court did not err by failing to toll the time by use of the saving statute in the instant case.

Cerney's second assignment of error is overruled.

The judgment in case No. 67010 is affirmed.

IV

Norfolk appeals from the grant of Cerney's Civ.R. 60(B) motion for relief from judgment in case No. 67649. Norfolk raises the following assignments of error upon appeal:

"I. The trial court erred in granting plaintiff's motion for relief from judgment, vacating its order of dismissal, and reinstating this FELA action which plaintiff had voluntarily dismissed on August 10, 1992, on the grounds that reinstatement two years after judgment and six years after plaintiff's accident violates controlling federal law 45 U.S.C. § 56 and is prohibited by the United States Supreme Court decision of Burnett v. New York Central Railroad Co., 380 U.S. 424 [85 S.Ct. 1050, 13 L.Ed.2d 941] (1965).

"II. The trial court erred in applying Ohio Civil Rule 60(B)(5) as the basis for granting plaintiff's motion for relief from his voluntary dismissal of his own FELA action which was done in the...