[Cite as Crump v. Batie, 2013-Ohio-2345.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

KIMBERLY CRUMP, et al.                       :

        Plaintiffs-Appellants                :           C.A. CASE NO.     2012 CA 69

v.                                                 :            T.C. NO.   12CV269

DR. ROD E. BATIE                                   :            (Civil appeal from
                                                                 Common Pleas Court)
        Defendant-Appellee                   :

                                                   :

                                            ..........

                                            OPINION

                         Rendered on the     7th       day of      June       , 2013.

                                            ..........

LEO P. ROSS, Atty. Reg. No. 0031061, 915 S. High Street, Columbus, Ohio 43206
      Attorney for Plaintiffs-Appellants

KAREN L. CLOUSE, Atty. Reg. No. 0037294, 2075 Marble Cliff Office Park, Columbus,
Ohio 43215
      Attorney for Defendant-Appellee

                                            ..........

DONOVAN, J.

                {¶ 1} This matter is before the Court on the Notice of Appeal of Kimberly

                and
[Cite as Crump v. Batie, 2013-Ohio-2345.]
William Crump, filed September 24, 2012. The Crumps appeal from the trial court’s

August 24, 2012 Entry granting summary judgment in favor of Dr. Rod E. Batie on the

Crumps’ medical negligence action.

        {¶ 2}      The Crumps initially filed their complaint against Batie on August 17, 2010,

and then they voluntarily dismissed it without prejudice, pursuant to Civ.R. 41(A)(1). The

“Notice of Voluntary Dismissal,” attached to Batie’s motion for summary judgment, is time

stamped March 15, 2011. The Crumps then refiled their complaint on March 16, 2012.

Batie moved for summary judgment on June 27, 2012, asserting that the Crumps “failed to

file this action within the time provided by the applicable statute of limitation and saving

statute.”

        {¶ 3}      In sustaining Batie’s motion for summary judgment, the trial court indicated

as follows:

                * * * Plaintiffs filed their original lawsuit against Dr. Batie on August

        17, 2010.      The case was voluntarily dismissed by plaintiffs pursuant to

        Civ.R. 41(A)(1) on March 15, 2011. Plaintiffs re-filed this claim on March

        16, 2012, therefore, this new suit was filed more than one year after plaintiffs’

        original action failed otherwise than on the merits and after the statute of

        limitations for bringing a medical negligence action against Dr. Batie had

        expired.

                Upon a review of the pleadings, the Court finds, the evidence and

        facts of this case demonstrate that no genuine issue of material facts exists

        with respect to this case. The statue of limitations and the saving statute

        expired before the plaintiff[s] re-filed their complaint, therefore, defendant is
                                                                                           3

       entitled to judgment in his favor as a matter of law.

       {¶ 4}    On August 31, 2012, the Crumps filed, pursuant to Civ.R. 60(B), a “Verified

Motion to Vacate August 24, 2012 Order Granting Summary Judgment in Favor of

Defendant,” which Batie opposed.        The trial court overruled the Crumps’ motion on

October 11, 2012.

       {¶ 5}    The Crumps assert one assigned error herein as follows:

       “THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE’S MOTION

FOR SUMMARY JUDGMENT.”

       {¶ 6}          The Crumps assert that their initial complaint “was dismissed at the

request of Appellant by the Court, according to the docket of entries at Exhibit A, on March

17, 2011. On June 27, 2012, Appellee filed a motion for summary judgment. A motion

the undersigned did not see prior to the trial court’s ruling.” The Crumps assert in a

footnote that “confusion may have occurred because Appellee’s previous counsel was

suspended from the practice of law on November 3, 2011. It is believed that mailings from

the court may have been erroneously sent to previous counsel.”      The Crumps assert that,

following the trial court’s grant of summary judgment, they moved the court for relief from

judgment “for the reason the undersigned did not receive a copy of or file opposition to”

Batie’s motion for summary judgment. Finally, the Crumps assert that “a factual issue

exists concerning whether the case was refiled within a year of voluntary dismissal. The

answer to this inquiry will depend on whether the starting point for calculation is March 15,

2011 or March 17, 2011.” They contend that the “answer may also be effected by whether

Appellee was in Ohio at all time[s] between March 15, 2011 and March 16, 2012. If he was
                                                                                          4

out of State, the number of days he was out of State, tolls the statute of limitations under

R.C. 2305.19.”

       {¶ 7}     As this Court has previously noted:

               Summary judgment is appropriate when: (1) there is no genuine issue

       as to any material fact; (2) the moving party is entitled to judgment as a

       matter of law; and (3) reasonable minds can come to but one conclusion, and

       that conclusion is adverse to the party against whom the motion for summary

       judgment is made, who is entitled to have the evidence construed most

       strongly in his favor. Harless v. Willis Day Warehousing Co., Inc., (1978), 54

       Ohio St.2d 64, 66, 375 N.E.2d 46; citing Civ. R. 56(C).           Huntington

       National Bank v. Hoffer, 2d Dist. Greene No. 2010-CA-31, 2011-Ohio-242, ¶

       5.

       {¶ 8}     As this Court has further noted:

               Appellate courts review a trial court's entry of summary judgment de

       novo. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622

       N.E.2d 1153 (4th Dist.1993). “De novo review means that this court uses the

       same standard that the trial court should have used, and we examine the

       evidence to determine whether as a matter of law no genuine issues exist for

       trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701

       N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64

       Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). PNC Bank, N.A. v.

       Craig, 2d Dist. Montgomery No. 25010, 2012-Ohio-5410, ¶ 5.
[Cite as Crump v. Batie, 2013-Ohio-2345.]
        {¶ 9}    R.C. 2305.113(E)(3) defines a “medical claim” as “any claim that is asserted

in any civil action against a physician * * * and that arises out of the medical diagnosis, care,

or treatment of any person.” R.C. 2305.113(A) provides that “an action upon a medical * *

* claim shall be commenced within one year after the cause of action accrued.” “A cause of

action for medical malpractice accrues upon the later of either (1) the termination of the

physician-patient relationship for that condition, or (2) when the patient discovers or, in the

exercise of reasonable care and diligence should have discovered, the resulting injury.

Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337.”                 Shade v. Bleser,

Montgomery No. 20938, 2005-Ohio-6544,¶ 10.

        {¶ 10} Batie does not dispute that the Crumps’ initial complaint was filed within

the statute of limitations. Civ.R. 41(A)(1) provides that “a plaintiff, without order of court,

may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice

of dismissal before the commencement of trial * * * .” “Unless otherwise stated in the

notice of dismissal * * * the dismissal is without prejudice * * * .” Civ.R. 41(A)(1)(b).

“It is well-established that, ordinarily, when a plaintiff dismisses an action without prejudice,

pursuant to Civ.R. 41(A), the parties are left as if no action had been brought.” Jackson v.

Allstate Ins. Co., 2d Dist. Montgomery No. 20443, 2004-Ohio-5775, ¶ 24; see Otworth v.

Department of Mental Health, 10th Dist. Franklin No. 92AP-555, 1992 WL 292372, *2

(Oct. 13, 1992). (“The peculiar feature of Civ.R. 41(A) is that it gives authority to a

plaintiff to dismiss an action without order of the court. The filing of such notice of

dismissal thus results in an immediate dismissal of the action.”)

        {¶ 11}    Ohio's savings statute provides in relevant part that “[i]n any action that is

commenced * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may
                                                                                            6

commence a new action within one year after the date of * * * 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(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.” Frysinger, at syllabus 2.

       {¶ 12}    Civ.R. 6(A) provides as follows:

                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 day of the act, event, or default from which the designated period of time

       begins to run shall not be included. The last day of the period so computed

       shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in

       which event the period runs until the end of the next day which is not a

       Saturday, Sunday, or a legal holiday.

R.C. 1.14 provides: “The time within which an act is required by law to be done shall be

computed by excluding the first and including the last day; except that, when the last day

falls on Sunday or a legal holiday, the act may be done on the next succeeding day that is not

Sunday or a legal holiday.”

       {¶ 13}    We agree with the Seventh District’s rationale in Schon v. National Tea

Co., 19 Ohio App.2d 222, 224, 250 N.E. 2d 890 (7th Dist. 1969), that in computing time in a

leap year such as 2012, which contains 366 days, “the better rule in the interpretation of the

legislative intent relative to the meaning of ‘year’ as used in Section 2305.19, Revised Code,

is that rule which automatically takes into account the quadrennial fluctuation contained in
                                                                                            7

the Gregorian calendar,” such that “the term, ‘year,’ is that period of time commencing the

following day after the act or event occurred and ending at the close of the first anniversary

of the day the act occurred.”

       {¶ 14} As Batie asserts, and the trial court’s docket and the clerk’s time stamp

reflect, the Crumps filed their voluntary dismissal on March 15, 2011, which was a Tuesday,

and the anniversary date thereof was Thursday, March 15, 2012, which was neither a

weekend or a legal holiday. As the trial court determined, the Crumps’ March 16, 2012

complaint was filed more than a year after their original action failed otherwise than on the

merits and after the one year statute of limitation expired.

       {¶ 15} Regarding the Crumps’ assertion that the application of the savings statute is

tolled by R.C. 2305.15, we disagree.     R.C. 2305.15(A) provides:

               When a cause of action accrues against a person, if the person is out

       of the state, has absconded, or conceals self, the period of limitation for the

       commencement of the action as provided in sections 2305.04 to 2305.14,

       1302.98, and 1304.35 of the Revised Code does not begin to run until the

       person comes into the state or while the person is so absconded or concealed.

       After the cause of action accrues if the person departs from the state,

       absconds, or conceals self, the time of the person's absence or concealment

       shall not be computed as any part of a period within which the action must be

       brought.

As this Court has previously noted, R.C. 2305.15 does not “apply to an action refiled

pursuant to R.C. 2305.19. Saunders v. Choi (1984), 12 Ohio St.3d 247, 466 N.E.2d 889.”
                                                                                              8

Lesher v. McDermott, 2d Dist. Miami No. 02CA0025, 2003-Ohio-458, ¶ 27.

       {¶ 16}     We note that, while the Crumps’ notice of appeal and assigned error is

limited to the trial court’s decision on Batie’s motion for summary judgment, both parties in

their briefs address the trial court’s decision on the Crumps’ Civ.R. 60(B) motion for relief

from judgment, upon which the trial court ruled while the Crumps’ appeal was pending. As

this Court has previously noted:

                It has been the longstanding rule in Ohio that a direct appeal divests a

       trial court of jurisdiction to rule on a Civ .R. 60(B) motion for relief from

       judgment. State ex rel. East Mfg. Corp. v. Ohio Civ. Rights Comm. (1992), 63

       Ohio St.3d 179, 181, 586 N.E.2d 105, citing Klinginsmith v. Felix (1989), 62

       Ohio App.3d 147, 150-151, 574 N.E.2d 1142.               “Jurisdiction may be

       conferred on the trial court only through an order by the reviewing court

       remanding the matter for consideration of the Civ.R. 60(B) motion.” Howard

       v. Catholic Social Servs. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141,

       147, 637 N.E.2d 890. Wells Fargo Fin. Ohio 1 Mtge. Grp. v. Lieb, 2d Dist.

       Montgomery No. 23855, 2010-Ohio-6111, ¶ 10.

       {¶ 17}     The Crumps did not request a remand from this Court to permit a ruling on

their Civ.R. 60(B) motion, and no such remand was issued. “Without a limited remand

from this Court, the trial court lacked jurisdiction to issue its judgment overruling the motion

for relief from judgment, and that judgment is null and void. Wells v. Spirit Fabricating, Ltd.

(1996), 113 Ohio App.3d 282, 290, 680 N.E.2d 1046.” Lieb, id.

       {¶ 18} Finally, we note that the Crumps’ suggestion that “mailings from the Court
                                                                                          9

may have been erroneously sent to previous counsel” is belied by the trial court’s March 20,

2012 Summons and July 3, 2012 Notice of a non-oral summary judgment motion hearing on

August 3, 2012, both of which list the correct name and address for the Crumps’ counsel.

We further note that the certificate of service attached to the motion for summary judgment

reflects the correct name and address for counsel for the Crumps.

       {¶ 19} There being no genuine issue of material fact, the Crumps’ assigned error

lacks merit, and it is overruled. The judgment of the trial court is affirmed.

                                         ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Leo P. Ross
Karen L. Clouse
Hon. Douglas M. Rastatter
