Payton v. Rehberg

• Decision Date: 14 April 1997
• Docket Number: No. 70964,70964
• Parties: PAYTON, Appellant, v. REHBERG et al., Appellees.
• Court: Ohio Court of Appeals

Page 183

119 Ohio App.3d 183

694 N.E.2d 1379

PAYTON, Appellant, v. REHBERG et al., Appellees.

No. 70964.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided April 14, 1997.

Daniel C. Turoff, Shaker Hts., for appellant.

Reminger & Reminger Co., L.P.A., Frank Leonetti and Brian D. Sullivan, Cleveland, for appellees Robert J. Rehberg and Boulevard Sales & Services.

William S. Derkin, Cleveland, for appellee Larry E. Curry, Jr.

PORTER, Presiding Judge.

Plaintiff-appellant Myrtle Payton appeals from a judgment of the trial court in favor of defendants-appellees Robert J. Rehberg and Boulevard Sales & Services dismissing plaintiff's refiled action for personal injuries because it was barred by the two-year statute of limitations and holding that the savings statute did not apply. Plaintiff contends that the motion to dismiss was improperly granted and that the defendants were barred by equitable estoppel from raising the statute of limitations. We find no error and affirm for the reasons hereinafter stated.

Plaintiff's claim arose from injuries she allegedly sustained in an automobile accident which occurred on April 7, 1990. At that time, plaintiff was a passenger in an automobile operated by Larry Curry, whose vehicle collided with the vehicle operated by Rehberg. Boulevard Sales & Services owned the vehicle that defendant Rehberg was operating at the time of the collision.

On February 25, 1992, plaintiff first commenced an action for personal injuries against Rehberg and Boulevard Sales and Services (C.P. case No. 227674). On April 27, 1992, defendants Rehberg and Boulevard Sales filed a third-party complaint against Larry Curry. They alleged that, to the extent that they were liable to plaintiff for her injuries, they were entitled to contribution from Curry as a joint tortfeasor pursuant to R.C. 2307.31 and 2307.32. On May 10, 1993, the motion to withdraw by plaintiff's original attorney, Seymour Brown, was granted. The record reflects that plaintiff was not represented by counsel from May 10 to September 9, 1993.

On September 9, 1993, attorney Mitchell Weisman submitted on plaintiff's behalf a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a), "said dismissal being without prejudice and reserving the right to refile." A docket entry of September 10, 1993 reflects the dismissal. The court acknowledged the entry of plaintiff's notice of voluntary dismissal on December 13, 1993. Apparently, attempts to settle the claim were subsequently unsuccessful, although plaintiff supplied requested medical information to defense counsel.

On October 28, 1994, plaintiff refiled her action, the subject of the instant appeal. She named Rehberg, Boulevard Sales & Services, and Curry as defendants. Defendants Rehberg and Boulevard Sales filed a motion to dismiss plaintiff's refiled complaint on the basis that, pursuant to the savings statute (R.C. 2305.19), plaintiff was required to refile her action by September 10, 1994, within a year following her voluntary dismissal.

On June 27, 1995, the trial court granted defendants Rehberg's and Boulevard Sales' motion to dismiss. Thereafter, the dismissal was vacated in order to permit plaintiff additional time to respond to the argument that the court lacked jurisdiction over the refiled action. Plaintiff filed materials in opposition to the motion. By entry filed November 1, 1995, the court again dismissed plaintiff's claims against Rehberg and Boulevard Sales. The claim against Curry remained. On June 17, 1996, the trial court granted summary judgment to the remaining defendant Curry. On July 16, 1996, plaintiff filed a timely notice of appeal.

Plaintiff's two assignments of error will be addressed together as they both relate to the timely refiling of her action:

"I. The court erred in granting the joint motion to dismiss of appellees Robert J. Rehberg and Boulevard Sales and Service.

"II. The court erred in granting the motion to dismiss of appellee Larry E. Curry, Jr."

As a threshold issue, plaintiff argues that the trial court considered matters outside the pleadings so that dismissal of Rehberg and Boulevard Sales must be addressed as a summary judgment decision. We agree. Notwithstanding the caption of plaintiff's Assignment of Error II, we will also address the summary judgment entered by the trial court in favor of Curry.

Under Civ.R. 56, summary judgment is proper when:

"(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 273-274.

It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265, 278; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141.

However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099; Celotex, supra, 477 U.S. at 322-323, 106 S.Ct. at 2552-2553, 91 L.Ed.2d at 273-274. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424, 629 N.E.2d 513, 515.

In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing, 59 Ohio St.3d 108, 570 N.E.2d 1095. Presently, under the new standard, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher, at 296, 662 N.E.2d at 276.

This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157 ("We review the judgment independently and without deference to the trial court's determination."). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24, 26; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140, 1144.

Plaintiff argues that defendants should be precluded from raising the defense of the statute of limitations because their defense counsel "agreed to negotiate in good faith a settlement of [plaintiff's] claim without requiring refiling of the lawsuit." Plaintiff relied upon her attorney's affidavit wherein he indicated delay in refiling plaintiff's suit because defense counsel agreed to negotiate in good faith to reach a settlement of plaintiff's claims once he received and evaluated all medical records from the various doctors and hospitals where plaintiff was treated.

Plaintiff has relied upon Kosa v. Pruchinsky (1992), 82 Ohio App.3d 649, 612 N.E.2d 1291, for the proposition that the doctrine of equitable estoppel operates to preclude a defendant from using the statute of limitations as a defense to a claim when defendant's conduct induced the delay in filing the action. However, the court in Kosa determined that there was no evidence that the defendants' conduct induced plaintiffs to change their position:

"The purpose of the doctrine of equitable estoppel is to avoid unjust results which are 'contrary to good conscience and fair dealing.' Markese v. Ellis (1967) 11 Ohio App.2d 160, 163, 40 O.O.2d 313, 315, 229 N.E.2d 70, 73. While courts have discerned other elements in the application of equitable estoppel, the primary focus is on the conduct of the party against whom the estoppel is asserted and the reasonable reliance of the party asserting it. 'Equitable estoppel precludes a party from asserting certain facts where the party, by his conduct, has induced another to change his position in good faith reliance upon that conduct. * * * ' * * * In the present case we fail to find any conduct by any officer or agent of Pneumatic which reasonably induced or misled Kosa. * * * " Id. at 652, 612 N.E.2d at 1293.

In Markese v. Ellis (1967), 11 Ohio App.2d 160, 40 O.O.2d 313, 229 N.E.2d 70, syllabus, the court of appeals held that the doctrine of equitable estoppel does not preclude a defendant from asserting a statute of limitations defense unless the evidence demonstrates some fraud, misrepresentation, or false statement by the defendant:

"[A]n estoppel to the operation of a statute of limitations does not arise in an action for damages through personal injury when the facts show: (1) no fiduciary or trust relationship between the parties; (2) no fraud, misrepresentation or false statement by defendant; (3) no concealment of material facts; (4) no request by the defendant to withhold legal action pending negotiations for settlement; (5) no promise or agreement of the defendant not to plead the statute of...