McCullough v. Bennett
| Decision Date | 03 June 2022 |
| Docket Number | 29390 |
| Citation | 190 N.E.3d 126 |
| Parties | Ryan MCCULLOUGH, Plaintiff-Appellant v. Joseph E. BENNETT, Defendant-Appellee |
| Court | Ohio Court of Appeals |
ROBERT L. GRESHAM, Atty. Reg. No. 0082151, 130 West Second Street, Suite 1600, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant.
JONATHON L. BECK, Atty. Reg. No. 0076709 & ANTHONY V. GRABER, Atty. Reg. No. 0095691, 130 West Second Street, Suite 1500, Dayton, Ohio 45402, Attorneys for Defendant-Appellee.
{¶ 1} Ryan McCullough appeals from the trial court's judgment entry dismissing his refiled personal-injury complaint against appellee Joseph E. Bennett based on the expiration of the applicable statute of limitations.
{¶ 2} McCullough contends the trial court erred in finding the statute of limitations had expired where Ohio's savings statute, R.C. 2305.19, applied and extended the time for refiling the complaint.
{¶ 3} We agree that McCullough's refiled complaint met the requirements of the savings statute and that he refiled within the time required thereunder. Accordingly, we will reverse the trial court's judgment and remand for further proceedings.
{¶ 4} McCullough's complaint stems from an April 27, 2017 automobile accident in which Bennett allegedly ran a red light and hit McCullough's vehicle. The parties agree that McCullough's claims are governed by a two-year statute of limitations. The complaint underlying this appeal is McCullough's third against Bennett related to the accident. The first complaint was filed on January 15, 2018 in Montgomery C.P. No. 2018-CV-203. The trial court dismissed the complaint without prejudice on February 28, 2018 for failure to prosecute. McCullough refiled his complaint on June 27, 2018 in Montgomery C.P. No. 2018-CV-2944. The trial court again dismissed the complaint without prejudice on November 27, 2018 for failure to prosecute. The November 27, 2018 dismissal occurred prior to the statute of limitations expiring on April 27, 2019.1
{¶ 5} McCullough filed his third complaint on September 12, 2019, which was more than four months after expiration of the two-year limitations period. After certified-mail service was returned "unclaimed," McCullough served Bennett via ordinary mail. McCullough subsequently obtained a default judgment after Bennett failed to answer or otherwise respond. The trial court took evidence on damages and entered final judgment for McCullough on March 18, 2020. Thereafter, on August 30, 2021, Bennett obtained relief from judgment under Civ.R. 60(B) upon establishing that he had not resided at the address where service was perfected. McCullough then promptly served Bennett at an address in Indiana.
{¶ 6} On October 4, 2021, Bennett moved for dismissal under Civ.R. 12(B)(6). He argued that McCullough failed to state a claim because the two-year statute of limitations expired before the third complaint was filed. Bennett further argued that the savings statute could not apply because the first two complaints had been dismissed prior to expiration of the statute of limitations. Bennett cited case law for the proposition that the savings statute has no applicability unless an action is timely commenced and later dismissed without prejudice after the statute of limitations has expired. Because the two-year statute of limitations had not expired when McCullough's second complaint was dismissed, Bennett argued that the savings statute did not apply and that the third complaint was required to be filed by April 27, 2019. Given that McCullough did not file the third complaint until September 12, 2019, Bennett argued that it was time barred and, therefore, failed to state a claim.
{¶ 7} In opposition to the motion to dismiss, McCullough argued that a May 2004 amendment to the savings statute rendered obsolete the case law cited by Bennett. McCullough asserted that, as amended, the savings statute permitted him to refile his complaint within one year after his failure otherwise than on the merits or within the period of the original statute of limitations, "whichever is later." Because the trial court dismissed the second complaint without prejudice on November 27, 2018, McCullough claimed he had until November 27, 2019, to refile. Therefore, he maintained that his third complaint was timely.
{¶ 8} In his reply brief, Bennett ignored McCullough's argument and raised a new issue. Bennett claimed the savings statute did not apply for another reason, namely that the trial court's dismissal of the second complaint was not "otherwise than upon the merits." To the contrary, Bennett argued that the dismissal of the second complaint operated as an adjudication on the merits. That being so, he maintained that the savings statute had no applicability, as it extends the time for refiling only when a prior complaint is not dismissed on the merits. After obtaining leave to file a sur-reply to address this new argument, McCullough insisted that the dismissal of his second complaint was otherwise than on the merits. Therefore, he argued that the savings statute did apply.
{¶ 9} In a January 25, 2022 ruling, the trial court sustained Bennett's motion to dismiss. It agreed with Bennett's initial argument that the savings statute has no applicability unless a prior action is timely commenced and then dismissed after the statute of limitations has expired. Given that the statute of limitations had not expired when McCullough's second complaint was dismissed, the trial court found that the savings statute did not apply to extend the time for filing his third complaint. In essence, the trial court found that McCullough had no need to be "saved" because he simply could have filed his third complaint before the statute of limitations expired. McCullough timely appealed from the trial court's dismissal of his third complaint.
{¶ 10} In his sole assignment of error, McCullough challenges the trial court's determination that the savings statute did not apply because the statute of limitations had not expired when his second complaint was dismissed. He reiterates his argument that the statute, as amended in May 2004, allows refiling of a complaint within one year after "the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later." R.C. 2305.19. McCullough contends his second complaint was dismissed otherwise than upon the merits on November 27, 2018. Therefore, the savings statute gave him until November 27, 2019 to file his third complaint, making his refiled third complaint timely.
{¶ 11} Bennett advances three arguments in opposition. As he did below, he argues (1) that the savings statute did not apply because the two-year statute of limitations had not expired when McCullough's second complaint was dismissed and (2) that McCullough's second complaint was dismissed on the merits, not "otherwise than upon the merits," rendering the savings statute inapplicable. Bennett also raises a third argument that he did not assert below. Assuming, arguendo, that the second complaint was dismissed otherwise than upon the merits, Bennett contends the second action was never "commenced" under Civ.R. 3(A), making the savings statute inapplicable to the third complaint.
{¶ 12} We review de novo the trial court's dismissal of McCullough's third complaint on statute-of-limitations grounds under Civ.R. 12(B)(6). Auckerman v. Rogers , 2d Dist. Greene No. 2011-CA-23, 2012-Ohio-23, 2012 WL 29345, ¶ 9. The parties agree that the applicable limitations period is two years and that McCullough filed the third complaint beyond that time. McCullough also does not dispute Bennett's ability to raise the statute of limitations in a Civ.R. 12(B)(6) motion. See Gessner v. Vore , 2d Dist. Montgomery No. 22297, 2008-Ohio-3870, 2008 WL 2941617, ¶ 13 (). As set forth above, the only issue is whether the trial court erred in finding the savings statute inapplicable.
{¶ 13} Upon review, we conclude that the trial court did err and that the savings statute does apply. The savings 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.
{¶ 14} When an action fails otherwise than upon the merits, the statute permits filing a new action "within one year after * * * the plaintiff's failure otherwise than upon the merits or within the original applicable statute of limitations, whichever occurs later." Prior to its May 2004 amendment, R.C. 2305.19 granted a plaintiff an additional year to refile an action "only if dismissal occurred after the original statute of limitations had run." Eppley v. Tri-Valley Local School Dist. Bd. of Edn. , 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 8. "Sometimes referred to as the ‘malpractice trap,’ this meant that a plaintiff whose case had been dismissed without prejudice before the original statute of limitations had run was required to refile the action within the original statutory time, regardless of how much time was left." Id. But "[t]he General Assembly amended the general saving statute in 2004, closing the malpractice trap and permitting a plaintiff to refile within one year after dismissal or within the time remaining under the...
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