COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60427 ALEXANDROS KAVOURAS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JAMES E. HURT, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 17787 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: JUDSON J. HAWKINS, ESQ. JOSEPH H. WANTZ, ESQ. 618 Huntington Bldg. 21st Floor, Superior Bldg. 925 Euclid Ave. 815 Superior Ave. Cleveland, Ohio 44115 Cleveland, Ohio 44114 ROBERT G. HURT, ESQ. 1806 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant and appellees were all defendants in Klein v. Bosan (August 14, 1989), Court of Common Pleas No. 108399. That suit arose as a result of a multi-vehicle accident which occurred April 9, 1985. During that case appellant and appellees had filed cross-claims against one another. The cross-claims asserted by appellant against the appellees were for indemnification and contribution. On March 27, 1987, appellant filed a timely Motion for Leave to Plead and an attached cross- claim against the appellees for personal injuries resulting from the accident. On May 12, 1987, appellant's motion was denied. Appellant filed a Motion to Reconsider, fashioned as a 60(B) Motion for Relief from Judgment, on August 10, 1989. This motion was granted on August 14, 1989, vacating the judgment of May 12, 1987. At that point, appellant made a motion to dismiss his cross-claims without prejudice and that motion was also granted. As of August 14, 1989, the remainder of the entire case was dismissed. Appellant then filed this lawsuit, alleging the personal injury claims which he had first filed as cross-claims attached to the Motion for Leave to Plead in March of 1987. Appellees argued in their Motion to Dismiss at the trial level that the appellant's claims were barred by the statute of limitations and/or by res judicata. Appellant appeals from the trial court's - 2 - grant of appellees' Motion to Dismiss and Motion for Summary Judgment. He asserts three assignments of error. I THE TRIAL COURT WAS IN ERROR WHEN IT DISMISSED THIS LAWSUIT. THE TIME OF FILING A CROSS-CLAIM, FOR PURPOSES OF DETERMINING THE STATUTE OF LIMITATIONS, IS DICTATED BY THE DATE ON WHICH THE MOTION FOR LEAVE TO PLEAD AND ACCOMPANYING CROSS- CLAIM WAS FILED. Under R.C. 2305.10 a personal injury claim must be brought within two years of the accident giving rise to the claim. Appellant attempted to bring an action by way of cross-claims in the first lawsuit within the two year statute of limitations. His Motion for Leave to Plead and the attached cross-claims were filed March 27, 1987, less than two years after the accident took place on April 9, 1985. If the cross-claims had been allowed, they would have been brought within the statute of limitations. However, the trial court denied appellant's motion on May 12, 1987. By then the statute of limitations had run. R.C. 2305.19 affords a remedy for parties who have been denied the opportunity to bring their claims, timely when filed, after the statute of limitations has run. R.C. 2305.19 is a savings clause which allows parties in this position one extra year in which to remedy whatever had caused their actions to be dismissed the first time and to refile. - 3 - Under the terms of this savings clause: In an action... attempted to be commenced... if the plaintiff fails otherwise than on the merits, and the time limited for the commencement of such action at the date of... failure has expired, the plaintiff... may commence a new action within one year after such date. This provision applies to any claim asserted in any pleading by a defendant. R.C. 2305.19 "being a remedial statute, should be given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure." Cero Realty Corp. v. Insurance Co. (1960), 171 Ohio St. 82, 85, quoting Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Bemis (1901), 64 Ohio St. 26, 38. In Cero the plaintiff had failed to bring its action due to a procedural error, misjoinder of parties. That plaintiff dismissed the case without prejudice and refiled within a year. When defendants' demurrers to the amended petition were sustained, the Ohio Supreme Court held that that constituted a failure "otherwise than upon the merits." Because plaintiff's dismissal in Cero was attributable to "adverse rulings by the court," the dismissal was held to be involuntary. Cero at 86. In this case, the denial of appellant's Motion for Leave to Plead was an involuntary dismissal in response to an adverse ruling of the trial court. Appellant attempted to commence an action by attaching the cross-claims to his Motion for Leave to Plead. The denial of his motion constituted a failure otherwise - 4 - than upon the merits. Under the savings clause, appellant had only one year to initiate a new action. Instead, he waited nearly two years and three months before filing his Motion for Reconsideration, or Motion for Relief from Judgment, with the trial court. Appellant's claim was barred by the statute of limitations. Appellant's argument on appeal is that the grant of his Motion for Reconsideration effectively reinstated his cross- claims, without any need for the savings clause analysis. The grant of appellant's Motion for Reconsideration served to vacate the judgment which denied appellant's Leave to Plead. The journal entry does not grant him Leave to Plead by vacating the earlier judgment. He has never refiled the cross-claims which were attached to the first Motion for Leave to Plead. When the journal entry grants his voluntary dismissal of his cross-claims it can only be referring to the original cross-claims he had filed against the appellees for contribution and indemnification. There were no other cross-claims before the court. Appellant then proceeds in his appellate brief, in response to the res judicata theory presented by appellees, to argue that the savings clause analysis would apply to the voluntary dismissal of his cross-claims which was granted at the same time as his Motion for Reconsideration, August 14, 1989. The analysis under R.C. 2305.19 does not apply to the voluntary dismissal. Granted, a voluntary dismissal may serve as a failure otherwise - 5 - than upon the merits, depending upon when in the trial process it is made. However, in this case the voluntary dismissal was not of the personal injury cross-claims because they had not been filed. Appellant had never been granted leave to file them, as required by Civ. R. 15(A). Appellant's voluntary dismissal dismissed his claims to contribution and indemnification. He can not bring this personal injury action within a year of the voluntary dismissal of those claims and cite the savings clause for the right to do so. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED WHEN IT PERMITTED THE DEFENDANT'S TO ARGUE THE IMPROPRIETY OF THE PREVIOUS COURT'S GRANTING OF A 60(B) MOTION WHERE THE DEFENDANT'S HAD FAILED TO APPEAL THE GRANTING OF THAT MOTION. Appellant's assignment of error is well taken. The appellees can not complain in this case about an interlocutory order made in another trial. However, because appellant's complaint was time barred, allowing the arguments on the grant of the 60(B) motion is harmless error. III THE TRIAL COURT ERRED IN DISMISSING THE PLAINTIFF'S COMPLAINT BASED UPON CLAIMS OF RES JUDICATA. RES JUDICATA DOES NOT APPLY TO CROSS- CLAIMANTS OF A PREVIOUS LAWSUIT WHERE THOSE CROSS-CLAIMANTS VOLUNTARILY DISMISS THEIR CLAIMS AGAINST ONE ANOTHER. - 6 - Because appellant's claims are barred by the statute of limitations, we will address this third assignment of error under App. R. 12(A). Appellant's third assignment of error is well taken. In the previous lawsuit appellant and appellees were parties. However, the issue of appellant's personal injuries was never raised because the personal injury claims were never filed. Appellant does not argue this because it is his contention that the cross- claims were somehow refiled automatically upon the court's grant of his Motion for Reconsideration in August of 1989. Appellant argues that the personal injury claims were voluntarily dismissed at this time without prejudice so he is not barred by res judicata from bringing the personal injury claims again. The better argument is that res judicata: `proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy or issue, which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment in personam in a former suit.' Wade v. Cleveland (1982), 8 Ohio App. 3d 176, 177, quoting Fightmaster v. Tauber (1932), 12 Ohio Law Abs. 200, 201. The issue of appellant's personal injuries has never been litigated, never been finally determined upon its merits. Res judicata does - 7 - not exist when partial identity of the parties is the only similarity between the two suits. Appellant's third assignment of error is well taken. Because the trial court was correct to find that appellant's claim is barred by the statute of limitations, any reliance on appellees' res judicata argument is harmless error. The trial court's grant of appellees' Motion to Dismiss and Motion for Summary Judgment is affirmed. - 8 - It is ordered that appellees recover of appellant their 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., AND PATTON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .