Whitt v. Hayes

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[Cite as Whitt v. Hayes, 2003-Ohio-2337.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY HENRY O. WHITT, et al., Plaintiffs-Appellants, v. BOBBY HAYES, Personal Representative of the Estate of DORIS HAYES, Defendant-Appellee. : : : : Case No. 02CA2856 : : : DECISION AND JUDGMENT ENTRY : : Released 5/6/03 : : APPEARANCES: Michael H. Mearan, Portsmouth, Ohio, for Appellants. Thomas E. Boyle, Wiles, Boyle, Burkholder & Bringardner, Columbus, Ohio, for Appellee. Harsha, J. {¶1} Scioto In this County negligence Common Pleas action, Court s Hayes motion for summary judgment. Henry order Whitt that appeals granted the Bobby In his motion, Hayes argued that Whitt could not take advantage of the savings statute, R.C. 2305.19, since he did not complaint on the defendant. perfect service of his original Hayes also argued that Whitt failed to bring the litigation against a proper party. Because the savings statute only requires that plaintiffs file a complaint and a demand for service in order to "attempt to commence an action", the trial court could not grant summary judgment on this issue. the time However, since there was no estate in existence at Whitt refiled the complaint, representative, he not bring proper party. Thus, the trial court properly granted summary did this and thus no litigation personal against a judgment. On August 25, 1998, Henry Whitt was involved in an {¶2} automobile accident with Doris Hayes. On August 25, 2000, Whitt filed a complaint with a demand for service on Ms. Hayes.1 alleged that Ms. Hayes negligently operated which caused him to suffer various injuries. her Whitt automobile, However, on two separate occasions, Whitt was unable to perfect service on Ms. Hayes. Finally, in September or October 2001, Whitt learned that Ms. Hayes was deceased. With this information, on October 12, 2001, Whitt voluntarily dismissed his complaint under Civ.R. 41(A)(1). On {¶3} November 13, 2001, Whitt refiled his complaint under the savings statute, R.C. 2305.19, and requested service on Bobby Hayes, as the personal representative of Doris Hayes estate. The next day, the clerk served Bobby Hayes with the complaint. 1 However, Ms. Hayes estate was not in existence at Our record begins with the re-filing of Whitt s complaint on November 13, 2001. We assume his original complaint prayed for the same relief as his refiled complaint. Moreover, since our record does not contain the proceedings involving his original complaint, we have based our factual background regarding the original complaint and its dismissal on Whitt s statement of facts, which Hayes does not dispute. this time; therefore, Bobby representative of her estate. Hayes was not the personal Moreover, at no time did Whitt attempt to open an estate for Ms. Hayes and appoint a personal representative in order to properly serve the estate. On June 21, 2002, Hayes filed a motion for summary {¶4} judgment, which argued Whitt could not take advantage of the savings statute by refiling his complaint because he did not perfect service of his original complaint on Ms. Hayes and that Whitt failed to bring this case against a proper party. The court granted Hayes motion without indicating which argument it found persuasive and dismissed Whitt s refiled complaint with prejudice. assigning granting Following the dismissal, Whitt filed this appeal, the the following error: "The defendant-appellee's motion trial court for erred summary in judgment and dismissing plaintiff-appellant's action." {¶5} We review a trial court's decision to grant summary judgment on a de novo basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. We apply the same standard as the trial court, which is the standard contained in Civ.R. 56. 442, 2001-Ohio-2557, Horsley v. Essman, 145 Ohio App.3d 438, 763 N.E.2d 245. Under Civ.R. 56(C), summary judgment is appropriate when: (1) no genuine issue of 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, when viewed most strongly in favor of the nonmoving party, that reasonable minds can come to a conclusion only in favor of the moving party. Grafton, supra. The burden of showing that no genuine issue exists as to any material fact falls upon the party requesting summary judgment, i.e., the Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, "moving party." 115, 526 N.E.2d 798. If the moving party satisfies this burden, "the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine respond, issue for summary trial and, judgment, if against the nonmoving party." if the nonmovant appropriate, does shall be not so entered Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 145, 1997-Ohio-219, 677 N.E.2d 308, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 295, 662 N.E.2d 264. {¶6} In his assignment of error, Whitt argues the trial court erred as a matter of law in granting Hayes motion for summary judgment because the savings statute, R.C. 2305.19, permitted him to refile his complaint even though he did not perfect service of his original complaint on Ms. Hayes. {¶7} Whitt filed his original complaint within the statute of limitations, but he did not perfect service of the complaint on Ms. Hayes. See R.C. 2305.10 (stating that a two-year statute of limitations exists for personal injury causes of action). Moreover, the two-year statute of limitations expired by the time Whitt refiled his complaint. Therefore, we must determine whether the savings statute required Whitt to perfect service of his original complaint before he could take advantage of it by reinstituting this action. {¶8} In order to make this determination, we examine the Revised Code and Rules of Civil Procedure. states in part: commenced, reversed, if or First, R.C. 2305.19 "In an action commenced, or attempted to be in if due the time a plaintiff judgment fails for the otherwise plaintiff than upon is the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date." [Emphasis Added]. Thus, under R.C. 2305.19, a plaintiff may refile a complaint within one year of its dismissal so long as the plaintiff commenced or attempted to commence the action, the statute of limitations has run, and the complaint was dismissed "otherwise than on the merits." Further, R.C. Civ.R. 3(A) address the commencement of an action. provides, [a]n action is commenced within 2305.17 and R.C. 2305.17 the meaning of sections 2305.03 to 2305.22 * * * by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for publication, if service is obtained within one year. service by Likewise, Civ.R. 3(A) provides, [a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * * *. Thus, in order to commence an action, a plaintiff must file a complaint and serve the defendant with the complaint within a year of filing the complaint. {¶9} Here, both parties agree Whitt did not perfect service of his original complaint on Ms. Hayes within one year of filing it. Therefore, under R.C. 2305.17 and Civ.R. 3(A), he did not commence an action against Ms. Hayes. However, since R.C. 2305.19 also provides that Whitt may attempt to commence his action and still take advantage of the savings statute, we must determine whether he properly attempted to commence an action against Ms. Hayes. {¶10} The attempt to former commence commencement. version of R.C. an action is 2305.17 provided, equivalent to an its Mason v. Waters (1966), 6 Ohio St.2d 212, 214, 217 N.E.2d 213, quoting former R.C. 2305.17. See, also, Lash v. Miller (1977), 50 Ohio St.2d 63, 64, 362 N.E.2d 642 (relying on Mason, supra). Thus, under former R.C. 2305.17, plaintiffs were required to file a complaint and perfect service within a year of filing the complaint before they could take advantage of the savings statute. the syllabus. Mason, 6 Ohio St.2d 212, at paragraph one of However, the current version of R.C. 2305.17 does not provide a definition for attempt to commence. In Thomas v. Freeman, 79 Ohio St.3d 221, 227, 1997-Ohio-395, 680 N.E.2d 997, the Ohio Supreme Court implicitly recognized this change in the law. {¶11} In Thomas, the plaintiff filed a complaint within the statute of limitations and attempted service on the defendant. Id. But the plaintiff failed to perfect service defendant within one year of filing the complaint. on Id. the Later, because of the plaintiff's failure to perfect service, the trial court dismissed Within a utilized year the the of complaint the savings trial statute for lack court s by of prosecution. dismissal, refiling perfecting service on the defendant. Id. her the Id. plaintiff complaint and In addressing the applicability of the savings statute, the Ohio Supreme Court stated: "since Thomas filed her initial complaint and demanded service before the two-year statute of limitations expired, and since the statute of limitations had subsequently expired, Thomas had one year from July 14, 1992 [the date of the trial court s dismissal] to refile her complaint, which she did on July 8, 1993, approximately six days prior to the expiration of the savings statute allowance." {¶12} Although the Court Id. did not acknowledge its prior decisions in Lash and Mason, its holding in Thomas implicitly limited those decisions to the former version of R.C. 2305.17. Thus, under Thomas, plaintiffs may utilize the savings statute within one year of the dismissal of a complaint so long as the statute of original limitations complaint with has a expired, proper the demand plaintiff for filed service on an the defendant, and the complaint was dismissed otherwise than on the merits. Thomas, 79 Ohio St.3d at 227. {¶13} Relying on Thomas, five Ohio appellate districts, have defined attempt to commence as filing a complaint and making a demand for service on the defendant within one year of filing the complaint. See Sorrell v. Estate of Datko, 147 Ohio App.3d 319, 2001-Ohio-3460, 770 N.E.2d 608, at ¶17-24; Shanahorn v. Sparks (June 29, 2000), Franklin App. No. 99AP-1340; Husarcik v. Levy (Nov. 10, 1999), Cuyahoga App. No. 75114; Frazier v. Owen (June 12, 1998), Hamilton App. No. C-970487; Dayringer v. City of Clyde (Nov. 21, 1997), Sandusky App. No. S-97-031. See, also, Schneider v. Steinbrunner (Nov. 8, 1995), Montgomery App. No. 15257 (holding that attempt to commence means filing a complaint and making a demand for service by relying on Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 575 N.E.2d 801). Like our sister districts, we read Thomas as defining "attempt to commence" as filing a complaint and making a proper demand for service within a year of filing a complaint. {¶14} As the movant under Civ.R. 56, Hayes had the burden of submitting the facts relating to Whitt s original complaint in order to show that no genuine issue of material fact existed. Since Hayes did not carry his burden, require Whitt to submit evidence. Civ.R. 56(E) did not Nevertheless, Whitt s counsel submitted an affidavit, which stated that he filed the original complaint, dismissed it, and then refiled it. created a genuine issue of material fact Therefore, Whitt as to whether he attempted to commence his original complaint. {¶15} However, this does not mean the trial court erred in granting Hayes' motion for summary judgment. the trial failed should bring to reasons this that "personal Hayes court he is grant action not representative" when Whitt a summary against proper because refiled the Hayes also argued judgment a proper party in no estate complaint because party. his Hayes capacity existed and Whitt for served as Ms. him. Moreover, he argues that Whitt could have, but failed to force the opening of an estate for Ms. Hayes. entry granting Hayes' motion for Since the trial court's summary judgment did not provide its reasoning, we must consider whether this is a proper basis for summary judgment. {¶16} Generally, plaintiffs may file a complaint against an estate only if the estate exists at the time of filing. Sorrell v. Estate of Datko, 147 Ohio App.3d 319, 2001-Ohio-3460, 770 N.E.2d 608, at ¶24. However, if the estate does not exist when the plaintiff files the complaint, the plaintiff must force the opening of an estate within a year of filing the complaint. Id. {¶17} Here, Ms. Hayes was still alive when Whitt filed his original service complaint on her. against After her but learning Whitt that failed Ms. to Hayes perfect died, Whitt dismissed his claim and refiled it against Bobby Hayes, in his capacity as the personal representative of Ms. Hayes's Estate. However, Ms. Hayes' Estate was not in existence when Whitt refiled his complaint; therefore, Bobby Hayes could not be the personal representative of her estate. Thus, Whitt did not file his complaint against a proper party. {¶18} Whitt knew when he refiled his complaint under the savings statute that Ms. Hayes was deceased. not take existed. independent Rather, he steps to relied statement to that effect. determine upon an However, he did whether insurance an estate adjuster's Moreover, at no time did Whitt take steps to force the opening of Ms. Hayes' Estate despite the fact that he should have known that it was required. For example, even when faced with Hayes' motion for summary judgment, Whitt refused to force the opening of an estate. Instead, Whitt clung to the argument that he still had time to force the opening of an estate. Nevertheless, when the trial court granted Hayes' motion for summary judgment, no estate existed. Thus, when the trial court granted Hayes' motion for summary judgment, Hayes was not a proper party to the litigation due to Whitt's failure to force the opening of an estate. {¶19} Whitt contends that the doctrine of equitable estoppel precludes Hayes from arguing that he was not a proper party to this case. him by Whitt bases this argument on information provided to Ms. Hayes' insurance company, Travelers Insurance. Apparently, Travelers Insurance notified Whitt that Ms. Hayes was deceased and Bobby Hayes was the personal representative of her estate. Whitt argues he justifiably relied on this information from Travelers when he refiled his complaint naming Bobby Hayes as the defendant. Thus, Whitt argues Hayes should be estopped from claiming that he is not a proper party because an agent of Ms. informed him that However, Whitt Hayes' Estate, Hayes cannot was claim i.e., the Travelers personal justifiable Insurance, representative. reliance upon the representations of Travelers because Whitt has the affirmative duty to file a complaint against a proper party and perfect service against that party. at ¶24. See, Sorrell, 147 Ohio App.3d 319, Regardless of whether the insurance company was guilty of legal gamesmanship or simply was mistaken, Whitt should have verified the existence of the estate and the identity of the personal representative. If he found no estate to exist, he should have forced the creation of an estate, so that he could properly serve the personal representative. and served a non-existent party as the Because he named defendant, the trial court properly granted summary judgment. Consequently, Whitt's assignment of error is overruled. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellants costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. & Kline, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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