Valuable Lessons From the Tenth District Court of Appeals

February 8, 2017

Shue v. Ohio Dept. of Rehab. & Corr.: One Year Means One Year, and Other Valuable Lessons From the Tenth District Court of Appeals

The Tenth District Court of Appeals recently decided the case of Shue v. Ohio Dept. of Rehab. & Corr. This case clarifies a rule – one year means one year, when it comes to Ohio’s Saving Statute – and provides a few other procedural lessons.

The Plaintiff sued the Ohio Department of Rehabilitation and Correction (ODRC), alleging nontreatment and negligent treatment of a spinal injury that resulted in paralysis. The lawsuit was filed in the Ohio Court of Claims, which hears cases against the State of Ohio. The Plaintiff had previously filed an identical lawsuit in 2013, but it was voluntarily dismissed on March 2, 2015. ODRC moved to dismiss on statute of limitations grounds, and the Court of Claims granted the motion. The Plaintiff appealed to the Tenth District Court of Appeals.

The Court of Appeals first clarified that a Complaint can be dismissed on statute of limitations grounds. The Court then explained:

{¶ 6} Dismissal of a cause of action is proper on statute of limitations grounds if the complaint “conclusively show[s] on its face the action is barred by the statute of limitations.” Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982), paragraph three of the syllabus; Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 60 (1974); see also Civ.R. 12(B). In Ohio the statute of limitations for medical malpractice actions is one year. R.C. 2305.113(A). But Shue’s claim may not have entirely consisted of a medical claim. See, e.g., Foster v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP- 503, 2013-Ohio-912, ¶ 32-35. Yet, even if it did not solely consist of a medical claim, the longest the statute of limitations could have been in this case was two years because the case was brought in the Court of Claims. R.C. 2743.16(A).

So, first lesson: if you have a possible case in the Court of Claims, your statute of limitations is, at most two years. The Court then noted that “[o]n the face of the complaint, the tortious conduct in this case took place in 2011 and 2012.” The statute of limitations had definitely passed. However:

{¶ 8} Ohio Revised Code Section 2305.19 permits a plaintiff whose case “fails otherwise than upon the merits” to recommence a lawsuit “within one year after the date of * * * the plaintiff’s failure otherwise than upon the merits.” R.C. 2305.19(A). “A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than upon the merits within the meaning of the savings statute, R.C. 2305.19.” Frysinger v. Leech, 32 Ohio St.3d 38 (1987), paragraph two of the syllabus; Ruch v. Ohio Dept. of Trans., 10th Dist. No. 03AP-1070, 2004-Ohio-6714, ¶ 9. Thus, a plaintiff like Shue may recommence a lawsuit within one year after the date of a voluntary dismissal.

However, March 3, 2016 is more than one year after March 2, 2015. The Plaintiff argued that the dismissal filed on March 2, 2015 was not effective until the Court of Claims noted the dismissal and assessed costs on March 6, 2015. However, the Court of Appeals dispensed with that argument, noting that “[i]t is well-established that a voluntary dismissal without prejudice pursuant to Civ.R. 41(A) is effective as of the date of the filing, not the date the trial court acknowledges the dismissal in a journal entry.” Another lesson that is not totally clear from the civil rules. Next, the Court explained why March 3, 2016 is more than one year from March 2, 2016:

{¶ 10} Shue observes that Civ.R. 6(A) provides that, when computing time, the date of the event that begins the period is not counted. (Shue Brief at 8-10); see also Civ.R. 6(A) (“In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the date of the act, event, or default from which the designated period of time begins to run shall not be included.”) Shue then concludes that since March 2 was not to be counted, the year began to run on March 3, 2015 and thus his March 3, 2016 filing was timely. (Shue Brief at 6- 10.) This conclusion is inoperable. One year from any given calendar day (not counting the calendar day itself) is always the anniversary of that day. For example, 365 days (or one year) from December 25, 2016, not counting December 25, 2016, is December 25, 2017. Because if a person were to start counting days at “1” on December 25, 2016, the counter would reach “365” on December 24, 2017. In the same manner, one year1 from March 2, 2015, not counting March 2, 2015, was March 2, 2016. Thus the filing on March 3, 2016 was not “within one year” of the voluntary dismissal. See, e.g., Crump v. Batie, 2d Dist. No. 2012 CA 69, 2013-Ohio-2345, ¶ 2, 10-14 (litigants who voluntarily dismissed on March 15, 2011, filed one day late when they refiled on March 16, 2012); Hawkins v. Innovative Property Mgt., 9th Dist. No. 23122, 2006-Ohio-6153, ¶ 2, 9-14 (litigant who voluntarily dismissed on May 19, 2003 filed one day late when she refiled on May 20, 2004). Shue’s action was not saved by Ohio’s savings statute.

Someone must have enjoyed writing that. The Court even noted that “[o]ne year in this case was 366 days since 2016 was a leap year, and the relevant time period included February 29, 2016.” The Plaintiff had one more argument – that his counsel acted with “excusable neglect” in mailing the filing from Delaware, Ohio on February 29, 2016 at 5:23 p.m. in the belief that it would arrive at the Court of Claims in Columbus by the close of business on March 2, 2016. However, excusable neglect is only applicable if a deadline set by a civil rule or court order is missed – it does not apply to statutes of limitation. The Court explained:

{¶ 11} Shue finally argues that his counsel acted with excusable neglect in mailing the filing from Delaware, Ohio on February 29, 2016 at 5:23 p.m. in the belief that it 1 One year in this case was 366 days since 2016 was a leap year, and the relevant time period included February 29, 2016. 5 No. 16AP-432 would arrive at the Court of Claims in Columbus by the close of business on March 2, 2016. (Shue Brief at 10-11, Ex. B.) Ohio Rule of Civil Procedure 6(B) provides that, “[w]hen by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may * * * upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.”

{¶ 12} While Civ.R. 6(A) specifically applies to deadlines set by “any applicable statute,” Civ.R. 6(B) does not apply to statutes, but rather to deadlines set by rules, notices, and court orders. Compare Civ.R. 6(A) with Civ.R. 6(B). Hence, as several courts have noted, Civ.R. 6(B)’s excusable neglect provisions cannot excuse non-compliance with the statute of limitations (which includes R.C. 2305.19). Hughes v. Fed. Mogul Ignition Co., 5th Dist. No. 06 CA 27, 2007-Ohio-2021, ¶ 23-28; Ruch at ¶ 22-23; Williams v. E. & L. Transp. Co., 81 Ohio App.3d 108, 110-11 (9th Dist.1991); see also McCullough v. Budd Co., 3d Dist. No. 16-92-12 (July 23, 1992) (Rule 60(B) excusable neglect also does not excuse compliance with R.C. 2305.19).  

If the statute of limitations is so close, then either overnight the filing to the Court and call to confirm receipt, or, better yet, drive down and file it or pay a courier to do so. The Court of Appeals must have agreed with me on this, because they did not show a lot of mercy in overruling this assignment of error. The decision aptly states: “While we certainly agree that missing the statute of limitations deadline in a case involving alleged paralysis was neglectful, as a matter of law such neglect cannot be considered excusable under Civ.R. 6(B).” Ouch.

About Durst Kerridge

Durst Kerridge maintains an extensive commercial and complex civil litigation practice throughout Ohio. To schedule a consultation, call (513) 621-4999 or reach out to Alex J. Durst or Paul R. Kerridge.

Alex J. Durst

Alex J. Durst is a civil trial attorney with over a decade of experience handling commercial and complex civil litigation matters on behalf of clients across a wide range of industries, with an emphasis on financial services litigation and high-dollar-value breach of contract claims.

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