Duckworth v. Burger King Corp.

• Decision Date: 27 January 2005
• Docket Number: No. 04AP-697.,04AP-697.
• Citation: 159 Ohio App.3d 540,824 NE 2d 592
• Parties: DUCKWORTH et al., Appellants and Cross-Appellees, v. BURGER KING CORPORATION, Appellee and Cross-Appellant.
• Court: Ohio Court of Appeals

159 Ohio App.3d 540

2005-Ohio-294

824 NE 2d 592

2005-Ohio-294

DUCKWORTH et al., Appellants and Cross-Appellees, v. BURGER KING CORPORATION, Appellee and Cross-Appellant.

No. 04AP-697.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided January 27, 2005.

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Smith, Phillips & Associates, and Janet L. Phillips, Mansfield, for appellants and cross-appellees.

McNamara & McNamara, Dennis D. Liston, and Jonathan M. Bryan, Columbus, for appellee and cross-appellant.

BROWN, Presiding Judge.

{¶ 1} Crystal and Dennis E. Duckworth, plaintiffs-appellants, appeal from a judgment of the Franklin County Court of Common Pleas in which the court granted the motion for summary judgment filed by Burger King Corporation, defendant-appellee.

{¶ 2} According to appellants, on November 5, 1998, Crystal consumed a Junior Whopper, french fries, and a soda at approximately 1:00 p.m., at a Burger King restaurant in Reynoldsburg, Ohio. She ate nothing else the rest of the day. At approximately 2:00 a.m. the next morning, Crystal became ill and was admitted to the hospital, where she was diagnosed as having salmonella enteritis.

{¶ 3} On September 12, 2000, appellants filed an action in Franklin County Municipal Court. On September 5, 2001, appellants amended their prayer for relief in an amount that exceeded the jurisdictional amount of the municipal court. On October 15, 2001, the municipal court transferred the case to the Franklin County Court of Common Pleas.

{¶ 4} On March 6, 2003, the common pleas court issued an entry transferring the case back to municipal court, finding that it was without jurisdiction in the matter because a municipal court may not transfer a case in which the prayer for relief exceeds its jurisdiction, citing State ex rel. Natl. Emp. Benefit Serv., Inc. v. Cuyahoga Cty. Court of Common Pleas (1990), 49 Ohio St.3d 49, 550 N.E.2d 941, which held that the proper procedure in such circumstances is for the municipal court to dismiss the matter without prejudice for refiling in the appropriate court.

{¶ 5} On May 14, 2003, appellants filed a complaint in the present case in the common pleas court, alleging claims for breach of warranties, loss of consortium, respondeat superior, breach of contract, violations of the Pure Food and Drug Act, R.C. 3715.59, breach of implied warranty of merchantability, and violations of the Consumer Sales Practices Act ("CSPA"), R.C. Chapter 1345. Burger King filed an answer and a counterclaim. In the answer, Burger King denied liability and claimed that the statute of limitations had expired. In its counterclaim, Burger King alleged that it was entitled to attorney fees pursuant to R.C. 1345.09(F) and entitled to payment of $1,100 for the deposition expenses of Burger King's expert witness, Lincoln C. Conaway, D.O.

{¶ 6} On September 4, 2003, Burger King filed a motion for summary judgment, claiming that appellants could not prove causation and that the claim was barred by the statute of limitations. Appellants filed a cross-motion for summary judgment. Also on September 4, 2003, the municipal court filed an entry dismissing appellants' original September 12, 2000 complaint, otherwise than on the merits and without prejudice for refiling in the appropriate court, pursuant to the March 6, 2003 transfer from the common pleas court.

{¶ 7} On May 26, 2004, the common pleas court denied appellants' cross-motion for summary judgment and granted Burger King's motion for summary judgment. On June 14, 2004, the court filed an entry finding that appellants' action was barred by the statute of limitations, denying Burger King's request for attorney fees, and granting Burger King judgment against appellants for one-half of the cost of Dr. Conaway's deposition, or $550. In a separate action, appellants filed a complaint in the common pleas court within one year of the municipal court's September 4, 2003 entry dismissing the action. Appellants appeal the June 14, 2004 judgment of the common pleas court, asserting the following assignment of error:

The trial court erred in finding plaintiff's sic claim failed on September 5, 2001 for purposes of R.C. 2305.19 when the matter remained pending in municipal court and was sua sponte transferred to common pleas court.

{¶ 8} Burger King has filed a cross-appeal, asserting the following cross-assignments of error:

I. The trial court erred in holding that Defendant/Appellee and Cross-Appellant Burger King Corporation's Counterclaim pursuant to R.C. § 1345.09(F) was not before the court for adjudication because the court lacks jurisdiction to hear the matter.

II. The trial court erred in failing to order Plaintiffs/Appellants and Cross-Appellees to reimburse Burger King for the entire cost of Dr. Lincoln Conaway's deposition.

{¶ 9} Appellants argue in their assignment of error that the trial court erred in granting summary judgment on the basis that their claim failed on September 5, 2001, for purposes of R.C. 2305.19, when the matter remained pending in municipal court as of that date. Our review of the trial court's decision to grant summary judgment is de novo. See Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162, 703 N.E.2d 841. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. See State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66, 8 O.O.3d 73, 375 N.E.2d 46.

{¶ 10} In reviewing this matter de novo, we will first address any application of R.C. 2305.19 and Civ.R. 41, both of which were cited by the trial court, to the present case. R.C. 2305.19, referred to as the saving statute, provides:

(A) 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.

{¶ 11} Civ.R. 41(B)(4) provides:

(4) Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits:

(a) lack of jurisdiction over the person or the subject matter.

{¶ 12} We find that neither R.C. 2305.19 nor Civ.R. 41 has any application to the case before this court. R.C. 2305.19 permits the commencement of a new action "within one year after * * * the plaintiff's failure otherwise than upon the merits," if at the time of the failure, the original applicable statute of limitations has expired. Here, the trial court found that the case failed otherwise than upon the merits as of the filing of appellants' amended complaint in the municipal court on September 5, 2001. We can find no authority for the proposition that a case can fail otherwise than upon the merits before the filing of a dismissal entry. Indeed, Civ.R. 41(B)(4)(a) specifically provides that, in order for there to be a failure other than on the merits, there must be "a dismissal." Therefore, insofar as the trial court found that the failure otherwise than on the merits occurred on September 5, 2001, the trial court erred. The failure otherwise than on the merits did not occur until the municipal court issued its judgment entry dismissing the case on September 4, 2003. As the complaint in the present action was filed before September 4, 2003, R.C. 2305.19 can have no application to the current case. For these reasons, neither R.C. 2305.19 nor Civ.R. 41 has any bearing on the issues before us.

{¶ 13} Because we have found that the original municipal court case remained pending as of the filing of the current action in the common pleas court, the issue arises as to whether the common pleas court could exercise jurisdiction in the present action when the municipal court had yet to dismiss the original action. A municipal court exercises concurrent jurisdiction with a court of common pleas, subject to the municipal court's monetary jurisdiction, in "any action or proceeding at law for the recovery of money or personal property." R.C.1901.18(A)(2). The jurisdictional-priority rule provides:" `As between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.'" State ex rel. Racing Guild of Ohio v. Morgan (1985), 17 Ohio St.3d 54, 56, 17 OBR 45, 476 N.E.2d 1060, quoting State ex rel. Phillips v. Polcar (1977), 50 Ohio St.2d 279, 4 O.O.3d 445, 364 N.E.2d 33, syllabus. Once a court acquires jurisdiction over a cause, its authority continues until the matter is completely and finally disposed of, and no court of coordinate jurisdiction is at liberty to interfere with its proceedings. John Weenink & Sons Co. v. Cuyahoga Cty. Court of Common Pleas (1948), 150 Ohio St. 349, 38 O.O. 189, 82 N.E.2d 730, paragraph three of the syllabus.

{¶ 14} Generally, the jurisdictional-priority rule operates only when the causes of action are the same in both cases; if the second case does not involve the same cause of action or the same parties...