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Judicial Administration and Legal Reform Committee

Report of the Judicial Administration and Legal Reform Committee

To the Council of Delegates:

The Judicial Administration and Legal Reform Committee recommends to the Council of Delegates a proposal to amend ORC §2305.19 to delete the requirement that the statute is only applicable when the time limited for the commencement of the action at the date of reversal or failure has expired (Exhibit A).

Respectfully submitted,
Fredric E. Kramer, Cleveland
Chair

Exhibit A

ORC §2305.19.  SAVING IN CASE OF REVERSAL.

(A) 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 the person dies and the cause of action survives, his the person’s representatives may commence a new action within one year after such date, or within the time period of the original applicable statute of limitations, whichever is later.  This provision applies to any claim asserted in any pleading by a defendant.  If the defendant is a corporation, foreign or domestic, and whether its charter prescribes the manner and place, or either, of service of process thereon, and it passes into the hands of a receiver before the expiration of such year, then service to be made within the following year following such original service or attempt to begin the action may be made upon such receiver or his cashier, treasurer, secretary, clerk, or managing agent, or if none of these officers can be found, by a copy left at the office or the usual place of business of such agents or officers of the receiver with the person having charge thereof.  If such corporation is a railroad company, summons may be served on any regular ticket or freight agent of the receiver, and if there is no such agent, then upon any conductor of the receiver, in any county in the state in which the railroad is located.  The summons shall be returned as if served on such defendant.

Committee Comment:
ORC §2305.19 sets forth the limitation for refiling a cause of action which has been dismissed otherwise than upon the merits, which commonly occurs pursuant to Civ. R. 41.   A reason which has been advanced for the amendment to delete the language that “and the time limited for the commencement of such action at the date of reversal or failure has expired” is that it constitutes a trap for the unwary.  It easily could be argued that practitioners should be aware of the applicable statutory provisions; however, this statute is easily overlooked with the emphasis on the rules and has resulted in unjust final terminations.  It is not proper that one party have a full year to refile an action whereas another party may be limited to one or two days.  Unfortunately, even a knowledgeable practitioner can be forced into a very difficult position in circumstances where a member of the judiciary in order to maintain control of the docket forces a dismissal to take place within immediate proximity to the time of the running of the statute of limitations. It is recommended that the additional language “or within the time period of the original applicable statute of limitations, whichever is later” be added to protect the plaintiff who by statutory authority has a longer period to commence a cause of action than the one year provided for in ORC §2305.19. In totality, this legislative amendment would allow the plaintiff to commence a cause of action after it had been reversed or dismissed otherwise then upon the merits, within one year after the dismissal of the cause of action or within the period of time of the original applicable statute of limitations.

 

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