[Cite as Warner v. Marshall, 2020-Ohio-1185.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          FAYETTE COUNTY




 WILLIAM WARNER,                                :

        Appellant,                              :      CASE NO. CA2019-08-019

                                                :             OPINION
     - vs -                                                    3/30/2020
                                                :

 D. BRENT MARSHALL,                             :
 ADMINISTRATOR OF THE ESTATE OF
 JAMES VALENTINE, DECEASED,                     :

        Appellee.




         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. CVH20180365


Plymale & Dingus, LLC, M. Shawn Dingus, 136 W. Mound Street, Suite 100, Columbus,
Ohio 43215, for appellant

Green & Green, Lawyers, Jared A. Wagner, 800 Performance Place, 109 North Main Street,
Dayton, Ohio 45202, for appellee



        HENDRICKSON, P.J.

        {¶ 1} William Warner appeals from the decision of the Fayette County Common

Pleas Court, which granted the motion to dismiss of D. Brent Marshall, in his capacity as

administrator of the Estate of James Valentine. For the reasons described below, this court

reverses the trial court's decision.
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       {¶ 2} The following facts are undisputed for purposes of this appeal. On May 19,

2015, James Valentine ("Valentine") negligently operated his motor vehicle, causing a

collision between his motor vehicle and the motor vehicle of Warner. Warner sustained

injuries resulting from the collision.

       {¶ 3} On April 13, 2017, Warner timely filed a personal injury lawsuit naming

Valentine as the sole defendant. After the suit commenced, Valentine passed away. On

October 5, 2017, Valentine's defense counsel suggested his death. On December 11,

2017, Warner voluntarily dismissed his complaint, without prejudice.

       {¶ 4} On December 10, 2018, the Fayette County Probate Court issued letters of

authority to Marshall to act as special administrator of Valentine's estate. On December

11, 2018, Warner refiled the personal injury complaint against Marshall in his capacity as

administrator of Valentine's estate. The personal injury claim asserted in the first complaint

mirrored the claim asserted in the refiled complaint and Warner added no other claims or

defendants.

       {¶ 5} Marshall subsequently moved to dismiss the complaint pursuant to Civ.R.

12(B)(6). Marshall argued that Warner had filed his personal injury claim beyond the two-

year statute of limitations, as the accident occurred in May 2015 and the complaint was re-

filed in December 2018. Marshall argued that the savings statute did not apply because

the first complaint was filed against Valentine and the refiled complaint was filed against a

different party, i.e., Valentine's estate. In opposition, Warner argued that the original suit

brought against Valentine, and the new suit, brought against Marshall as administrator,

were substantially the same and thus within the ambit of the savings statute.

       {¶ 6} The court issued its decision granting Marshall's motion to dismiss. The court

based its decision on Children's Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523

(1982), where the Ohio Supreme Court held that under the savings statute, a refiled lawsuit

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is not substantially the same as the initial lawsuit where the parties are "different." Warner

appeals, raising one assignment of error.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED BY FINDING THAT THE OHIO SUPREME

COURT'S HOLDING IN CHILDREN'S HOSPITAL V. OHIO DEP'T OF PUBLIC WELFARE,

69 OHIO ST.2D 523 (1982) COMPELLED IT TO DISMISS THE APPELLANT'S RE-FILED

COMPLAINT.

       {¶ 9} The trial court dismissed Warner's complaint based on Civ.R. 12(B)(6), which

authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be

granted. Marchetti v. Blankenburg, 12th Dist. Butler No. CA2010-09-232, 2011-Ohio-2212,

¶ 9. In reviewing a motion to dismiss, a trial court must accept the truth of all factual

allegations and all reasonable inferences must be drawn in favor of the nonmoving party.

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). It must appear "beyond doubt"

that the plaintiff can prove no set of facts in support of his claim that would entitle him to

relief. O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242, 245 (1975). An

appellate court conducts a de novo review of a trial court's order granting a Civ.R. 12(B)(6)

motion. Marchetti at ¶ 9.

       {¶ 10} The savings statute, R.C. 2305.19(A), provides:

              In any action that is 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, the plaintiff
              or, if the plaintiff dies and the cause of action survives, the
              plaintiff's representative may commence a new action within
              one year after the date of the reversal of the judgment or the
              plaintiff's failure otherwise than upon the merits or within the
              period of the original applicable statute of limitations, whichever
              occurs later. This division applies to any claim asserted in any
              pleading by a defendant.




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        {¶ 11} The savings statute is applicable where (1) the plaintiff filed the action within

the applicable statute of limitations, (2) the action was commenced or attempted to be

commenced in the manner set forth in Civ.R. 3(A), and (3) the action failed otherwise than

upon the merits. Reese v. The Ohio State Univ. Hosps., 6 Ohio St.3d 162, 163 (1983);

Korn v. Mackey, 2d Dist. Montgomery No. 20727, 2005-Ohio-2768, ¶ 20. "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), at paragraph two of the syllabus.

        {¶ 12} In addition to these requirements, the Ohio Supreme Court held in Children's

Hospital that the savings statute only applies when the first and second lawsuits are

"substantially the same." 69 Ohio St.2d at 525.1 The court further indicated that actions

"are not substantially the same, however, when the parties in the original action and those

in the new action are different." Id. at 525, citing Natl. Fire Ins. Co. v. Joslyn Mfg. Co., 25

Ohio App.2d 13, (9th Dist.1971). This court and the Ohio Supreme Court have held that

the savings statute is "a remedial statute and is to be given a liberal construction to permit

the decision of cases upon their merits rather than upon mere technicalities of procedure."

Hembree v. Mendenhall, 12th Dist. Butler No. CA2006-06-129, 2007-Ohio-459, ¶ 8, citing

Cero Realty Corp. v. American Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 85 (1960).

        {¶ 13} Upon review, this court concludes that the parties in Warner's first suit and

those in this action are not different and the two suits are substantially the same. The plain

language of the savings statute evidences an intent by the General Assembly that the

statute would apply to claims that survived the death of the parties. Specifically, the statute


1. The hospital filed its initial lawsuit against the Ohio Governor, the Director of the Ohio Department of Public
Welfare, and the Secretary of the U.S. Department of Health, Education, and Welfare. Id. at 523-524. That
case was dismissed otherwise than upon the merits and the hospital, within a year, but beyond the statute of
limitations, filed a second lawsuit concerning the same issue but raising a new claim solely against the Ohio
Department of Public Health. Id. at 524.

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refers to the right of a plaintiff to commence a new action, or if the plaintiff has died, the

right of the plaintiff's representative to commence a new action.            Thus, the drafters

harmonized the savings statute with Ohio law, which provides that most actions survive the

death of either party. R.C. 2311.21.

       {¶ 14} Furthermore, this language evidences the General Assembly's view that a

party and an estate representative are considered the same party with the same rights for

purposes of applying the statute.       Although the statute does not expressly refer to a

defendant's representative, there is no logical rationale for distinguishing between a

plaintiff's estate representative and a defendant's estate representative.

       {¶ 15} Marshall argues that the fact that the statute refers to the right of a plaintiff's

representative to refile suit but does not also refer to the right to file suit against a deceased

defendant's representative indicates, through the doctrine of expressio unius est exclusio

alterius, that the General Assembly specifically intended to preclude refiling claims against

decedent's estates. This court finds the omission of such language is insignificant. The

focus of the statute is on the right of the plaintiff to refile a voluntarily dismissed lawsuit.

Therefore, it makes sense that the statute would not specifically address the right to refile

against a deceased defendant's estate.

       {¶ 16} Marshall also contends that this court is compelled to affirm the trial court

because this court and others have held that the savings statute is not applicable to suits

brought against a party that was not named in the initial filed action, even when those parties

are related to or assignees of the party named in the first action. In National Fire – the case

cited in Children's Hospital for the proposition of law that actions are not substantially the

same where there are "different" parties – the plaintiff landlord filed suit against the tenant

for a fire loss that destroyed the leased building due to the tenant's negligence. Id. at 13.



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The landlord's insurance company later joined that lawsuit as an additional plaintiff. Id. at

14. The lawsuit was subsequently dismissed without prejudice for lack of prosecution. Id.

       {¶ 17} Within a year of the dismissal but after the statute of limitations expired, the

insurance company refiled the lawsuit against the tenant. Id. The court held that the

savings statute did not apply because the insurance company, even though it was an

assignee of the landlord's claim, was not the same party as the landlord. Specifically, the

court held that "the phrase, 'the plaintiff * * * may commence a new action * * *' does not

mean an assignee of a portion of the claim, or one to whom the original plaintiff sold an

interest in the action." Id. at 15.

       {¶ 18} This court held similarly to National Fire in a case involving an insurance

company with a subrogation interest in a plaintiff's claim that attempted to use the savings

statute to avoid a statute of limitations defense to a second lawsuit. Eiford v. McGinnis,

12th Dist. Preble No. CA86-06-013, 1987 Ohio App. LEXIS 9627 (Nov. 16, 1987). Eiford

filed a personal injury action against McGinnis four days prior to the statute of limitations

deadline. Id. at *1. Twenty months later, the court dismissed the case without prejudice by

the agreement of both parties. Id. Less than one year later, Eiford and his insurance carrier,

Hamilton Mutual Insurance Company ("Hamilton Mutual"), filed suit against McGinnis, with

Hamilton Mutual asserting a claim for subrogation. Id. at *2. The trial court found that

Eiford's claim was timely filed by virtue of the savings statute but that Hamilton Mutual's

claim was not saved because it had not been a party to the initial suit. Id. This court

affirmed, premising its decision on the holding of Children's Hospital and finding that the

two lawsuits were not "substantially the same" because Hamilton Mutual had not joined the

earlier lawsuit. Id. at *5-6.

       {¶ 19} Children's Hospital and the subrogation cases discussed above are

distinguishable. Children's Hospital involved a subsequent lawsuit asserting a new claim

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against an organizational entity that had not been sued in the first suit. National Fire and

Eiford both involved insurance companies effectively attempting to use a plaintiff's savings

statute right to cure statute of limitations issues with their later filed lawsuits. While the

insurance companies may have been attempting to enforce their legal interest in the

plaintiff's claim, each company was ultimately appearing on behalf of its own interest, and

thus would be considered a "different" party than the plaintiff.

        {¶ 20} On the other hand, Marshall does not represent his own legal interest. After

Valentine died and the probate court issued letters of authority, Valentine's legal existence

shifted to Marshall in his capacity as administrator. See Baker v. McKnight, 4 Ohio St.3d

125, 128 (1983).2 Thus, while Valentine and Marshall are nominally "different" parties, the

legal existence represented by both is the same.3

        {¶ 21} Ultimately, Marshall's argument exalts form over substance.                          A logical

extension of the argument is that Warner could have avoided any issue with the savings

statute by refiling the suit against Valentine, the decedent, then amending the complaint

and serving Marshall as provided by Civ.R. 3(A).4 In such a case, the second lawsuit would




2. "The situation before this court may be categorized as a misnomer of party. Essentially the plaintiff has
sued an entity, Hanson Castor, by the wrong name. Though Castor is dead, his legal existence is not
extinguished, but shifted to the special administrator of his estate in existence at the date of the original
complaint." Baker at 128. (Favorably quoting an Indiana appellate court's description of the "misnomer
theory").

3. The need for an administrator and for a formal estate administration derived from the English common-law
concept that the personal property of a decedent descended to the executor or administrator, while real estate
would descend directly to the heirs or devisees. Murphy v. Murphy, 42 Wash. 142, 148 (1906), citing Woerner,
1 American Law of Administration, § 199. The principal purpose of the estate administration was to ensure
the rights of creditors to the assets of the decedent to satisfy any debts. Id.

4. "[W]here the requirements of Civ. R. 15(C) for relation back are met, an otherwise timely complaint in
negligence which designates as a sole defendant one who died after the cause of action accrued but before
the complaint was filed has met the requirements of the applicable statute of limitations and commenced an
action pursuant to Civ. R. 3(A), and the complaint may be amended to substitute an administrator of the
deceased defendant's estate for the original defendant after the limitations period has expired, when service
on the administrator is obtained within the one-year, post-filing period provided for in Civ. R. 3(A)." Baker at
129.

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initially mirror the first lawsuit, thus resolving the issue of the two suits being against

nominally "different" parties.

       {¶ 22} What Warner did by refiling the complaint against Marshall was consistent

with the statutory right granted by the savings statute to plaintiffs and their estate

representatives. Warner refiled his voluntarily dismissed claim within one year against the

individual appointed by the probate court to act as representative of Valentine's estate.

Accordingly, this court holds that a defendant who dies during the pendency of litigation and

the representative of his estate are not "different" parties for purposes of the savings statute.

This court sustains Warner's assignment of error and reverses the decision of the trial court.

       {¶ 23} Judgment reversed and remanded.

       S. POWELL and RINGLAND, JJ., concur.




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