LaBarbera v. Batsch

Decision Date19 April 1967
Docket NumberNo. 40358,40358
Parties, 39 O.O.2d 103 LaBARBERA, Appellee, v. BATSCH, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

Where it is properly established that in a prior suit on the same cause of action between the same parties a valid and existing final judgment was rendered for defendant on the ground that the statute of limitations had expired prior to its commencement, such judgment, whether or ot erroneous is on the merits, and is res judicata, and the plaintiff is not entitled to recommence his action under Section 2305.19, Revised Code. (Section 2305.19, Revised Code, construed; Belpash v. Emerine, 119 Ohio St. 226, 162 N.E. 799, limited and distinguished.)

The instant case is before this court upon allowance of defendant's motion to certify the record. For review is the propriety of the Court of Appeals' reversal of the Cuyahoga County Common Pleas Court's granting of defendant's motion for summary judgment. The relevant portions of the pleadings and affidavit before the trial court on the motion may be summarized as follows:

Plaintiff's petition, filed on November 22, 1963, seeks recovery for injuries allegedly suffered in an automobile accident caused by the negligence of the defendant on August 7, 1959. In anticipation and avoidance of the bar of the statute of limitations which appeared upon the face of his petition, plaintiff alleges also that a prior action 'based on this cause of action' (emphasis added) had been brought against the defendant within the period of the statute of limitations and had been dismissed by the Court of Appeals otherwise than upon the merits on December 13, 1962, after the running of the statute.

Defendant's answer admits that the collision had taken place when and where alleged and for a first defense alleges that the prior action was attempted to be commenced on August 8, 1961 (after the running of the statute), that it had been dismissed by the court at cost of plaintiff on the express ground that the statute of limitations had run prior to its commencement, and that such dismissal had been affirmed by the Court of Appeals on December 13, 1962. Defendant attached to his motion and brief for summary judgment certified copies of those journal entries which establish the dismissal of the prior action and a finding that the statute had run prior to the action's commencement and the affirmance thereof with a finding of no prejudicial error. Defendant's first defense is that plaintiff did not fail otherwise than upon the merits in the first action, and his second defense is a general denial.

Plaintiff's reply consists of a general denial.

Defendant's motion seeks summary judgment 'for the reason that this action has not been commenced within two years following the accruing of the cause of action and that the provisions of Ohio Revised Code 2305.19 * * * do not apply to a situation where the statute of limitations * * * has already run at the filing of the attempted commencing of the original cause of action * * *.'

Rini & Hecht and Donald L. Goldman, Cleveland, for appellee.

Hermann & Rhoa and Albert J. Rhoa, Cleveland, for appellant.

O'NEILL, Judge.

Broadly stated, the issue in this case concerns the relationship between the saving statute, Section 2305.19, Revised Code, and the principle of res judicata. More precisely, the question is whether a case wherein final judgment has been rendered for the defendant on the ground that the action was not commenced within the period prescribed by statute, which judgment was appealed from and affirmed and further appeal rights have long since expired, can be rebrought under Section 2305.19, Revised Code.

Although defendant's first defense does not specifically set forth that it is a defense of res judicata or estoppel and may therefore, have been subject to motion to make definite and certain (Section 2309.34, Revised Code), it was not attacked on such ground, and the right to object on that ground was, therefore, waived. State Automobile Mutual Ins. Co. v. Robinette, Admr. (1933), 47 Ohio App. 22, 189 N.E. 857. The same might be said if the defense stated was regarded as simply the general statute of limitations (Section 2305.10, Revised Code), with an allegation of facts showing that the saving statute relied upon by plaintiff (Section 2305.19, Revised Code) does not apply. The same might also be said, particularly on appeal, of the objection that separate grounds of defense were not separately stated and numbered in accordance with Section 2309.15, Revised Code. Compare Mantho v. Board of Liquor Control (1954), 162 Ohio St. 37, 120 N.E.2d 730. In any event, facts sufficient to establish either defense are pleaded adequately enough that neither defense was waived. State Automobile Mutual Ins. Co. v. Robinette, Admr., supra.

It is clear that if there were no saving statute (Section 2305.19, Revised Code), the dismissal of the previous suit would bar this action. The material facts incontrovertibly established by the pleadings and affidavit summarized above are that a prior suit between the same parties on the same cause of action was dismissed with an express finding that it had not been commenced within the period limited by statute (Section 2305.10, Revised Code), and that such dismissal was appealed from to the Court of Appeals and there affirmed on December 13, 1962.

Even if this dismissal were not on the merits (contrary to our later holding herein), where this same issue is raised in a subsequent suit on the same cause of action between the same parties, the elements of a 'direct estoppel' are present. Norwood v. McDonald et al., Admrs. (1943), 142 Ohio St. 299, 306, 52 N.E.2d 67 (paragraph three of the syllabus); First National Bank of Cincinnati v. Berkshire Life Ins. Co. (1964), 176 Ohio St. 395, 199 N.E.2d 863 (paragraph one of the syllabus); Schram v. City of Cincinnati (1922), 105 Ohio St. 324, 137 N.E. 868; Hixson v. Ogg (1895), 53 Ohio St. 361, 42 N.E. 32; Restatement of the Law of Judgments, Section 45(c), comment d, Section 49, comment b, Section 50, comment d; 32 Ohio Jurisprudence 2d 48 and 58, Judgments, Sections 297 and 307. If the dismissal was on the merits (as we later hold), it is clearly a complete bar to another suit on the same cause of action between the same parties. Norwood v. McDonald, supra (paragraph one of the syllabus); Restatement of the Law of Judgments, Sections 45(b) and 48; 2 Freeman on Judgments (5 Ed.), 1322 and 1427, Sections 627 and 676; 32 Ohio Jurisprudence 2d 31, Judgments, Section 277.

It is not contended that the judgment in the prior action was void because of some defect relating to the jurisdiction of either court therein, in which case the judgment could not operate as an estoppel as to a particular fact or issue; nor could it operate as res judicata as to a cause of action. Horovitz v. Shafter (1950), Ohio App., 94 N.E.2d 201, 57 Ohio Law Abst. 341; 32 Ohio Jurisprudence 2d 42, Judgments, Sections 292 and 293; Restatement of the Law of Judgments, Section 45, comment e. Nor is this a proceeding in which fraud or collusion in the obtaining of the former judgment is urged. It is, however, claimed that the decision of the courts in the prior action was erroneous, by virtue of the decision of this court in Robinson v. Commercial Motor Freight, 174 Ohio St. 498, 190 N.E.2d 441 (decided May 8, 1963, nearly five months after the Court of Appeals affirmed the original judgment herein, which affirmance was not appealed to this court). The Robinson case overruled Baltimore & Ohio Rd. Co. v. Ambach, 55 Ohio St. 553, 45 N.E. 719, McLarren v. Myers, Admr., 87 Ohio St. 88, 100 N.E. 121, and Zakrzewski v. Lenczycki, 129 Ohio St. 462, 195 N.E. 867. The appellant asserts that both the trial and appellate courts relied upon those cases in rendering their judgments in the prior action.

Facts relevant to the matters decided in Robinson and Mabach, supra, such as the time of filing of the petitions and praecipes and the time of issuance of the summons to the sheriff in the original actions, were established in the trial court by affidavit, and appellee's argument and the judgment of the Court of Appeals herein are based upon the claim that by virtue of the retrospective operation of Robinson, supra, the judgments of the courts in the original action were erroneous. See opinion of the court below, LaBarbera v. Batsch (1966), 5 Ohio App.2d 151, 214 N.E.2d 443. It is obvious that appellant's case depends upon the applicability of the saving statute, Section 2305.19, Revised Code, for its vitality, because there is no exception in the doctrine of res judicata for merely erroneous judgments.

When ares judicata or estoppel is applicable, the record properly in evidence of a valid and existing judgment is conclusive, when it shows on its face that a relitigation of the same cause of action or issue is sought. In such situation, extrinsic evidence is not admissible to show error. Wanzer v. Self (1876), 30 Ohio St. 378; Norwood, v. McDonald et al., Admrs., supra (paragraph six of the syllabus); Hixson v. Ogg, supra; Covington and Cincinnati Bridge Co. v. Sargent (1875), 27 Ohio St. 233; State, ex rel. Schneider, v. Brewer, Judge (1951), 155 Ohio St. 203, 98 N.E.2d 2; Lamb v. Sebach, 52 Ohio App. 362, 3 N.E.2d 686; 32 Ohio Jurisprudence 2d 128, 130 and 131, Judgments, Sections 376, 377 and 378.

The reason for this rule is that the doctrine of res judicata would be abrogated if every decision could be relitigated on the ground that it is erroneous, and there would be no stability of decision, or no end to litigation. As was declared in State, ex rel. Sylvania Home Telephone Co., v. Richards et al., Judges (1916), 94 Ohio St. 287, 295, 114 N.E. 263, 265:

'* * * when a judgment has been rendered in due course by a court of final jurisdiction the parties should not be left in doubt as to its finality or be led to speculate on...

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