COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67088 PHILIP ARDIRE, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF WESTLAKE : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 259309 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: GERALD W. PHILLIPS, ESQ. ROBERT C. MCCLELLAND, ESQ. PHILLIPS & CO., L.P.A. BRYAN P. O'MALLEY, ESQ. 35955 Detroit Road RADEMAKER, MATTY, Avon, Ohio 44011 MCCLELLAND & GREVE 55 Public Square, Suite 1775 Cleveland, Ohio 44113 - 2 - DYKE, J.: Plaintiffs-Appellants, Philip Ardire, et al., appeal from a summary judgment granted in favor of Defendants-Appellees, The City of Westlake, et al., dismissing as untimely "Ardire III," a re- filed appeal of appellees' denial of a simple property split. The trial court found that the two-year statute of limitations set forth in R.C. 2305.10 controlled appellants' action as such action plead injuries to personal property. In the first of four assignments of error, appellants argue that Ardire III was timely filed because it involves damages to real property and is controlled by the four-year statute of limitations set forth in R.C. 2305.09(D). Appellants also claim that Ohio's savings statute applies; that an alleged agreement made by the appellees' estops them from asserting a limitations defense and that a prior federal court ruling bars and estops the trial court from ruling on the statute of limitations issue. Upon review, we find appellants' assignments of error to be without merit. Accordingly, the judgment of the trial court is affirmed. The procedural history of the instant case is stated as follows: On June 11, 1985, appellants appealed appellees' denial of a simple property split in Case No. 92860. (Ardire I) Appellants voluntarily dismissed the action without prejudice on January 13, 1987 pursuant to Civ.R. 41(A)(2). On January 12, 1988, appellants re-filed the action in federal court alleging 42 U.S.C., Section 1983 claims as well as pendent - 3 - state law claims in Case. No. C88-0085. (Ardire II) Appellees moved to dismiss the federal claims as untimely as appellants failed to plead them in Ardire I. The district court denied appellees' motion finding that appellants' federal law claims were similar enough to their state law claims to trigger R.C. 2305.19, the savings statute. The entire action was dismissed, however, on 1 October 7, 1992, for lack of ripeness. On October 6, 1993, appellants filed the instant action pleading state law claims only in Case No. 259309. (Ardire III) On March 17, 1994 the trial court granted appellees' dismissal and/or summary judgment motions holding that appellants' claims sounded in tort for personal injuries and were therefore time-barred pursuant to R.C. 2305.10. The instant appeal followed. I THE LOWER COURT ERRONEOUSLY GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT WHEN IT FAILED TO HOLD THAT THE APPELLANTS TIMELY FILED ARDIRE III WITHIN ONE YEAR OF THE DISMISSAL OF ARDIRE II AS IS PERMITTED UNDER THE OHIO SAVINGS STATUTE ORC SECTION 2305.19 SINCE APPELLANTS' STATE CLAIMS FOR INJURIES AND DAMAGES TO THEIR PROPERTY AND PROPERTY RIGHTS ARE GOVERNED BY ORC SECTION 2305.09(D), THE FOUR YEAR STATUTE OF LIMITATIONS. III THE LOWER COURT ERRONEOUSLY GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT BECAUSE THE TWO YEAR STATUTE OF LIMITATIONS FOR PERSONAL BODILY INJURIES CONTAINED IN O.R.C. SECTION 2305.10 IS COMPLETELY INAPPLICABLE TO APPELLANTS STATE CLAIMS. 1 This dismissal was affirmed by the Sixth Circuit Court of Appeals on June 30, 1993. - 4 - In their first and third assignments of error, appellants argue that their action alleges injuries to real property and that R.C. 2305.09, the four year statute of limitations applies, rendering Ardire III timely. Appellants also claim that the savings statute applies, rendering Ardire III timely. Appellants' arguments lack merit. In Lawyers Cooperative Publishing v. Muething (1992), 65 Ohio St.3d 273, the Supreme Court of Ohio adopted a method of analysis which "looked at the nature of the property injured" to determine which of Ohio's multiple statutes of limitation applied. In finding that the pleadings set forth in Muething's counterclaim for the negligent writing and publishing of certain securities forms sounded in tort and caused him to sustain "... embarrassment, humiliation, loss of professional reputation and prestige, emotional pain, suffering, and distress, and a decrease 2 in the value of his law practice," the court held that such pled injuries constituted injuries to personal property and applied R.C. 2305.10 and not R.C. 2305.09(D). Lawyers Cooperative, at 278. Appellants' complaints also demonstrate the pleading of 3 injuries to personal property. Hence, while appellant's cause of 2 Muething claimed that Lawyers' publishing of a defective securities purchase form caused him the above-cited injuries. 3 Defendants did willfully, maliciously, intentionally, arbitrarily with bad faith, corruption, improper motives, ill will, bias, conflict of interest, gross abuse of their discretion, and exceeding the scope of their authority denied the Plaintiffs simple - 5 - action accrued from an alleged wrongful denial of a property split, the injuries pled were not injuries to real property but injuries to personal property. Appellants' savings statute argument also fails as the voluntary dismissal of Ardire I on January 13, 1987, prior to the expiration of the two year statute of limitations on March 4, 4 1987, precludes them from availing themselves of the statue. See, R.C. 2305.19 and Armstrong v. Harp Realty Co., Inc. (1991), 73 Ohio App.3d 292. Appellants' first and third assignments of error are overruled. property split; causing the Plaintiffs damages, expenses, costs, losses, liabilities, attorney fees, loss of profit, loss of revenues, all to their detriment. Complaint, Ardire I, filed 6/11/85, Paragraph 14. Defendants carelessly, negligently, maliciously, recklessly and with gross neglect and disregard deny Plaintiff's simple property split causing the Plaintiffs damages, expenses, costs, liabilities, attorney fees, loss of profits and loss of revenues all to the detriment of the Plaintiffs. Amended Complaint, Ardire I, filed 5/16/86, Paragraph 15. Each of four claims alleged in Ardire III, also demonstrate the pleading of injuries to personal property, to wit, ... expenses, costs, losses, liabilities, attorney fees, loss of profit, loss of revenue, pain, suffering, and mental anguish." Complaint, Ardire III, filed 10/6/93, Counts 1-4 4 Appellants' cause of action accrued on March 4, 1985 when their application for a property split was denied. - 6 - II THE LOWER COURT ERRONEOUSLY GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT WHEN IT FAILED TO HOLD THAT APPELLANTS' STATE CLAIMS FILED IN ARDIRE III WERE TIMELY SINCE ARDIRE II WAS FILED WITHIN ONE YEAR OF THE DISMISSAL OF ARDIRE I. In their second assignment of error, appellants argue that their claims are timely even if we find the two year statute of limitations to have expired and even if we determine the savings statute to be inapplicable, because appellees' approval of and consent to voluntary dismissal constitutes a waiver of the applicable statute of limitations as appellants' dutifully filed Ardire II within one year of the dismissal of Ardire I. Appellants claim that such consent estops appellees from asserting a limitations defense in Ardire III. Appellants' arguments are unsupported in fact and law. The trial court's Civ.R. 41 dismissal order demonstrates no conditional agreement regarding limitations defenses and appellants cite no authority to support their novel argument that consent to voluntary dismissal alters or extends applicable statutes of limitations. Appellants' second assignment of error is overruled. IV THE LOWER COURT ERRONEOUSLY GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT BECAUSE THE APPELLEES HAVE PREVIOUSLY ASSERTED THE STATUTE OF LIMITATIONS AS A DEFENSE SUPPORTIVE OF THEIR MOTION TO DISMISS IN ARDIRE II WHICH WAS DENIED AND SUCH DENIAL CONSTITUTES AN ADJUDICATION OF THIS ISSUE OF THE STATUTE OF LIMITATIONS AND ACTS AS A BAR, RES JUDICATA, OR AS AN ESTOPPED BY JUDGMENT, TO THE RELITIGATION OF THIS ISSUE. - 7 - In their fourth assignment of error, appellants claim that a prior statute of limitations ruling issued by the district court in Ardire II is res judicata with respect to appellants' state law claims and operates to bar and estop the trial court from ruling on appellees' motions. Appellants' arguments are meritless and misleading as the record clearly demonstrates that the precise issue decided by the district court in Ardire II was different from the precise issue decided in Ardire III. See, Parkland Hosiery Co. v. Shore (1979), 439 U.S. 322, 326 and Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St.3d 134. In Ardire II, appellees moved to dismiss appellants' federal law claims. In Ardire III, appellees moved to dismiss appellants' state law claims. Hence, the districts court's ruling on the timeliness of appellants' federal law claims does not bar the state court from ruling on the timeliness of appellants' state law claims. Accordingly, the trial court did not err in granting summary judgment in favor of the appellees as no genuine issue of triable fact remained with respect to whether Ardire III was timely filed. See, Civ.R. 56(C) Appellants' fourth assignment of error is overruled. The judgment of the trial court is affirmed. - 8 - It is ordered that appellees recover of appellants its 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 Common Pleas Court 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. PORTER, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE 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 .