George Maloof v. Mary K. Vodicka
| Decision Date | 29 March 1984 |
| Docket Number | 47278,84-LW-1065 |
| Parties | George Maloof, Plaintiff-Appellant v. Mary K. Vodicka, et al, Defendant-Appellees |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court Case No. 041,817.
LINDA M. RICHARDSON, The Justice Center, Courts Tower, Cleveland Ohio 44113 FOR DEFENDANT-APPELLEES.
JOURNAL ENTRY and OPINION
This is an appeal from a decision of the Court of Common Pleas granting summary judgment to the defendant-appellees.
On April 14, 1982, appellant George Maloof sued Mary Vodicka, William Robinson, and the City of Cleveland for malicious prosecution. He charged that Ms. Vodicka and Mr. Robinson had brought criminal charges against him, and that these charges were dropped on July 31, 1979.
Defendant-appellees moved for summary judgment on two grounds. First, they contended that as a matter of law, they were not liable for malicious prosecution. Second, they claimed that the complaint was barred by the one-year statute of limitations contained in R.C. 2305.11. The trial court granted summary judgment without indicating specifically which of the two grounds upon it was relying.
On appeal to this Court, appellant contends that neither ground was a sufficient basis for summary judgment.®1¯
Footnote 1 The appellant's assignments of error state:
The appellant's cause of action accrued on July 31, 1979. He did not file a claim for malicious prosecution in Common Pleas Court until nearly three years later. He did file a claim in federal court, on July 23, 1980, which was dismissed in March of 1982 for failure to allege a cause of action under federal law. The appellant contends that the saving statute, R.C. 2305.19, serves to preserve his right to file a complaint for malicious prosecution until one year after his complaint in federal court was dismissed. The saving statute provides, in relevant part:
"In an action 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, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date."
The appellant's federal claim charged infringement of his civil rights under 42 U.S.C. 1983, 1985, and violation of his constitutional rights under the Fourth and Fourteenth Amendments to the Constitution. The appellant also requested the federal court to exercise pendant jurisdiction over his state claims for false arrest, malicious prosecution, and gross negligence. The district court found the appellant's federal claims to be without merit, and dismissed the complaint pursuant to Fed. Civ. R. 12(B)(6) for failure to state a claim on March 11, 1981. In March, 1982, the Court of Appeals for the Sixth Circuit affirmed the decision of the district court. The appellant's state claims were also dismissed by the federal court, though not on the merits, but simply because the federal court had no duty to adjudicate them once the federal claims had been dismissed.
The appellant's federal claims were dismissed on the merits. But his state claims were not adjudicated on the merits in federal court. Thus it would appear he is entitled to the protection of the saving statute.
Ohio decisions conflict on the question of whether the savings period commences with the dismissal of a plaintiff's claim at the trial court level, or whether it commences with affirmance of the trial court's decision. Compare Higgins v. Turney & Jones Co. (1912), 18 Ohio Cir. Ct. New Series 558, and Price v. Kobacker (1927), 25 Ohio App. 44 (), with Colello v. Bates (1950), 88 Ohio App. 313 ().
This Court of Appeals, in LaBarbera v. Batsch (1966), 5 Ohio App. 2d 151, concluded that the savings period should run from the date of affirmance. That decision was reversed on other grounds at 10 Ohio St. 2d 186 (1967), and the issue of the commencement date of the savings period was not expressly discussed.
The clear modern trend of the decisions of other sister states is to find that the savings period commences with the final appellate determination of the original action which is otherwise upon the merits. See Determination of Beginning of Period Allowed by Statute for Commencement of New Action, After Failure, Otherwise Than on the Merits, of Action Timely Begun, 79 ALR 2d 1270. It is the opinion of this Court that this is the proper interpretation of the saving statute, because it protects the plaintiff's right to appeal and preserves judicial resources. To hold otherwise would be to require the plaintiff to maintain both an appeal from the order dismissing the original action, and to simultaneously commence a second action. We therefore hold that it was sufficient for appellant to commence his action in state court within one year of the decision of the Court of Appeals for the Sixth Circuit, affirming the decision of the federal district court.
The appellees contend that since appellant was "grossly negligent" in bringing this suit in federal court, that this ought to bar him from the protection of the saving statute. There is authority for the proposition that the application of the saving statute is governed by equitable principles. In Pittsburg, C.C. & St. L. Ry. Co. v. Bemis (1901), 64 Ohio St. 26, it was noted that "inexcusable laches" or "bad faith" on the part of the plaintiff would deprive the plaintiff of the extension of the period of limitations afforded under the saving statute. An example of such fault would be the filing of a claim for false imprisonment before a justice of the peace. But the Ohio Supreme Court held in Bemis that the filing of a claim for false imprisonment in federal court, where there was lack of diversity jurisdiction, was not indicative of such fault as to bar application of the saving statute, once the federal claim had been dismissed. Accordingly, the appellant's claim was not barred by the statute of limitations.
The charge upon which appellant was arrested was violation of City Ordinance 571.05 (failure to pay fees or charges for use of airport facilities).®2¯ The maximum penalty for violation of this ordinance is a fine of fifty dollars and a jail term of thirty days. Ord. 571.99.
Footnote 2 Ordinance 571.05 provides:
Appellant owns a parking lot (Park Place) which operates shuttle buses to the airport. According to the evidentiary material submitted by the appellees, the appellant was charged $250.00 per vehicle every six months, for permission to operate the shuttle buses on airport property. A competitor, Park and Fly, was...
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