Saunders v. Choi

• Decision Date: 01 August 1984
• Docket Number: No. 83-1085,83-1085
• Parties: , 12 O.B.R. 327 SAUNDERS et al., Appellants, v. CHOI, Appellee, et al.
• Court: Ohio Supreme Court

Page 247

12 Ohio St.3d 247

466 N.E.2d 889, 12 O.B.R. 327

SAUNDERS et al., Appellants, v. CHOI, Appellee, et al.

No. 83-1085.

Supreme Court of Ohio.

Aug. 1, 1984.

Syllabus by the Court

The tolling provisions of R.C. 2305.15 are expressly inapplicable to an action brought under R.C. 2305.19, and cannot be used to extend the one-year time limitation within which to commence an action under Civ.R. 3(A).

On August 30, 1979, plaintiff-appellant, Ethel Saunders, on her own behalf and as administratrix of the estate of her daughter, filed an action in the Cuyahoga County Court of Common Pleas alleging medical malpractice against, inter alia, defendant-appellee, Dr. Chul Choi. Plaintiff's complaint alleged that Ethel Saunders had given birth to a daughter on June 27, 1975 at the Cleveland Metropolitan General Hospital, and that the defendant was her attending physician. The complaint further alleged that defendant was negligent in the delivery of plaintiff's daughter and in the performance of subsequent medical services covering a period from June 27, 1975 to approximately December 23, 1975.

The complaint was timely filed, despite the one-year statute of limitations set forth in R.C. 2305.11, by virtue of the savings provisions provided in R.C. 2305.19. ¹ Plaintiff had initially filed a complaint against defendant in June 1976; however, this complaint was dismissed, without prejudice, pursuant to Civ.R. 41(B)(1) for failure to prosecute. Plaintiff endeavored to serve defendant by publication. The last day of publication took place on September 17, 1981.

On October 8, 1981, defendant filed a motion to strike the complaint, claiming that plaintiff had failed to obtain service of process over him within the one-year limitation for commencement of an action established in Civ.R. 3(A). That rule provides:

"A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing."

By opinion and order dated February 3, 1982, the trial court dismissed the complaint without prejudice, holding that service of process had not been perfected within one year of the filing of said complaint, as specified under Civ.R. 3(A).

Plaintiff appealed the dismissal of her complaint to the court of appeals, while defendant cross-appealed the trial court's decision to dismiss the complaint "without prejudice" and for not granting defendant's motion to strike the complaint. This appeal was referred to as Cuyahoga App. No. 45101 in the court of appeals.

Prior to filing her appeal in case No. 45101, plaintiff filed another complaint against defendant on February 22, 1982 in the same trial court. This complaint was dismissed without opinion in June 1982 upon an unopposed motion by defendant. Plaintiff then appealed this dismissal, which was referred to as Cuyahoga App. No. 45578 in the court of appeals.

The appellate court consolidated the aforementioned appeals, and on May 16, 1983, held that both complaints should be dismissed with prejudice. The court of appeals ruled that plaintiff's failure to obtain service of process within one year of refiling her complaint previously dismissed without prejudice should cause the complaint to be stricken from the record (case No. 45101). The appellate court also held that with respect to case No. 45578, the savings clause of R.C. 2305.15 does not extend the additional year given plaintiff under the savings clause of R.C. 2305.19. As such, the court of appeals held that the complaint filed in February 1982 was barred by the statute of limitations and, therefore, was properly dismissed by the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Peter Onysko, Cleveland, for appellants.

Quandt, Giffels, Buck & Rodgers Co., L.P.A., Joseph R. Tira and Robert G. Quandt, Cleveland, for appellee.

SWEENEY, Justice.

The plaintiff-appellant submits that R.C. 2305.15, 2305.19 and Civ.R. 3(A) must be read in pari materia, meaning that the two statutes and the civil rule are to be construed together. ² It is the appellant's contention that since defendant-appellee, Dr. Chul Choi, has been continually absent from the state of Ohio since June 30, 1977, R.C. 2305.15 tolls the time limitation for the commencement of an action under Civ.R. 3(A). Appellant further argues that both R.C. 2305.15 and 2305.19 are remedial in nature, and as such, must be liberally construed.

R.C. 2305.15 provides as follows:

"When a cause of action accrues against a person, if he is out of state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, inclusive, and sections 1302.98 and 1304.29 of the Revised Code, does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought." (Emphasis added.)

As this court held in paragraph two of the syllabus in Szekely v. Young (1963), 174 Ohio St. 213, 188 N.E.2d 424 :

"A direction to liberally construe a statute in favor of certain parties will not authorize a court to read into the statute something which cannot reasonably be implied from the language of the statute." See, also, Felske v. Daugherty (1980), 64 Ohio St.2d 89, 91, 413 N.E.2d 809 ; Farrier v. Connor (1984), 12 Ohio St.3d 219, 221-222.

We are of the opinion that the plain language of R.C. 2305.15 reveals that this savings provision does not apply to an action brought under R.C. 2305.19. While the appellant maintains that the maxim in pari materia applies to the situation in the instant case, the appellant at the same time ignores the express language of R.C. 2305.15 which effectively denies its application to an action filed under R.C. 2305.19. In interpreting the above-emphasized language of R.C. 2305.15, it appears to us that the common-law doctrine of expressio unius est exclusio alterius ³ applies, and thus prevents the statute from operating in an action brought by virtue of R.C. 2305.19.

While it is true that the subject matter of the instant case was originally filed under R.C. 2305.11, the complaint brought under this statute, although timely commenced, was dismissed without prejudice for failure to prosecute. But for the existence of R.C. 2305.19, appellant would have been unable to maintain her cause of action.

R.C. 2305.19 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. * * *" (Emphasis added.)

Thus, although the statute of limitations had expired under appellant's original malpractice action brought under R.C. 2305.11 when said action was dismissed for failure to prosecute, R.C. 2305.19 provided appellant with another opportunity to revive her cause of action which would have been otherwise time-barred, but for this savings provision.

The record indicates that appellant timely filed her second complaint, brought pursuant to R.C. 2305.19, but did not timely "commence" her action until after the time limitation contained in Civ.R. 3(A) had expired.

Under Civ.R. 3(A), an action is not deemed to be "commenced" unless service of process is obtained within one year from the date of the filing of the action. The record before us reveals that service of process over the appellee was not obtained until approximately two years had elapsed from the date of filing, and this presumes that the method of service of process undertaken was indeed valid.

In any event, since service of process was not obtained within the time constraints set forth in Civ.R. 3(A), appellant's action was therefore not timely commenced either under the Civil Rules or R.C. 2305.19. The interplay of R.C. 2305.19 and Civ.R. 3(A) gave appellant, in effect, two years within which to commence her action. R.C. 2305.19 provided appellant with one year in which to refile or revive her previously dismissed complaint. Civ.R. 3(A) provided appellant with another year in which to obtain service of process over the appellee, Dr. Choi. Since appellant failed to obtain service of process within the time period allotted in Civ.R. 3(A), under the procedural devices governing service of process set...