Opinion

Fong v. Faires

  • 2025 Ohio 1032
Court
Ohio Court of Appeals
Filed
Mar 25, 2025
Status
Published
On the bench
Dingus
Cited by
1 cases
Authority
More cited than 49.8%

The opinion

[Cite as Fong v. Faires, 2025-Ohio-1032.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Ilan Fong, :

Plaintiff-Appellant, : No. 24AP-467

(C.P.C. No. 23CV-5765)

v. :

(ACCELERATED CALENDAR)

Charles Faires et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on March 25, 2025

On brief: Walton + Brown, LLP, and Chanda L. Brown, for

appellant. Argued: Chanda L. Brown.

On brief: Curry Roby, LLC, and Edwin J. Hollern, for

appellee, American National Property & Casualty Company.

Argued: Edwin J. Hollern.

On brief: Carol K. Metz and Timothy McKay, for appellee,

The Standard Fire Insurance Company. Argued: Timothy

McKay.

APPEAL from the Franklin County Court of Common Pleas

DINGUS, J.

{¶ 1} Plaintiff-appellant, Ilan Fong, appeals from a judgment of the Franklin

County Court of Common Pleas granting the motions for summary judgment of

defendants-appellees, American National Property and Casualty Company (“American

National”) and The Standard Fire Insurance Company (“Standard Fire”). For the following

reasons, we reverse and remand.

No. 24AP-467 2

I. Facts and Procedural History

{¶ 2} On August 30, 2021, Fong filed an action against Charles Faires and

American National, Fong’s underinsurance carrier, alleging he sustained bodily injury due

to Faires’ negligent operation of a motor vehicle on August 31, 2019. On September 8, 2021,

service was completed on American National. Service was not completed as to Faires. On

November 10, 2021, Faires’ counsel filed a suggestion of death, indicating Faires died on

April 19, 2020. On August 16, 2022, the trial court dismissed the action, without prejudice,

pursuant to Civ.R. 25(A)(1), based on Fong’s failure to substitute Faires’ estate as a party

within 90 days of November 10, 2021.

{¶ 3} On August 14, 2023, Fong refiled his complaint against Faires and American

National. On August 30, 2023, Fong filed a suggestion of Faires’ death, and a motion for

substitution of party pursuant to Civ.R. 25, seeking to have himself, as the special

administrator for Faires’ estate, substituted as the proper party. Two days later, American

National moved to dismiss the refiled complaint as time barred. On January 22, 2024,

Standard Fire moved to intervene and join American National’s motion to dismiss the

action as time barred.

{¶ 4} In May 2024, the trial court denied Fong’s motion to substitute and granted

Standard Fire’s motion to intervene. As to the motion to substitute, the trial court reasoned

that because Faires died before the commencement of litigation, substitution of Faires’

estate pursuant to Civ.R. 25 would not be proper. The trial court also converted the motions

to dismiss to motions for summary judgment. On July 8, 2024, the trial court granted the

motions for summary judgment.

{¶ 5} Fong timely appeals.

II. Assignment of Error

{¶ 6} Fong assigns the following sole assignment of error for our review:

The trial court erred in granting the Motion[s] for Summary

Judgment, as Appellant properly utilized Ohio’s savings

statute, R.C. 2305.19.

No. 24AP-467 3

III. Discussion

{¶ 7} In his sole assignment of error, Fong contends the trial court erred in

granting appellees’ motions for summary judgment because it improperly applied Ohio’s

saving statute, R.C. 2305.19. We agree.

{¶ 8} An appellate court reviews summary judgment under a de novo standard.

Estate of Sample v. Xenos Christian Fellowship, Inc., 2021-Ohio-3898, ¶ 9 (10th Dist.).

Summary judgment is appropriate only when the moving party demonstrates (1) no

genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds could come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is made, that party

being entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State

ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).

{¶ 9} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of

informing the trial court of the basis for the motion and identifying those portions of the

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,

293 (1996). However, the moving party cannot discharge its initial burden under this rule

with a conclusory assertion that the nonmoving party has no evidence to prove its case; the

moving party must specifically point to evidence of the type listed in Civ.R. 56(C)

affirmatively demonstrating that the nonmoving party has no evidence to support the

nonmoving party’s claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the

moving party discharges its initial burden, summary judgment is appropriate if the

nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with

specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;

Civ.R. 56(E).

{¶ 10} Here, at issue is whether Fong’s claims were legally barred as untimely filed.

Generally, “an action for bodily injury or injuring personal property shall be brought within

two years after the cause of action accrues.” R.C. 2305.10(A). Personal injury claims arising

from a motor vehicle accident accrue on the day of the accident, and thus the statute of

limitations for such claims expires two years after the accident. Middleton v. Erie Ins.,

2022-Ohio-2486, ¶ 9 (10th Dist.). Because this matter involves claims arising from a motor

vehicle accident, the statute of limitations for Fong’s claims expired two years after the

No. 24AP-467 4

accident. The motor vehicle accident occurred on August 31, 2019, and therefore the

applicable statute of limitations expired August 31, 2021.

{¶ 11} The parties dispute whether the requirements of the “saving statute,” R.C.

2305.19, were established to provide an exception to the two-year statute of limitations

applicable to Fong’s personal injury claims. R.C. 2305.19 permits “plaintiffs to refile

lawsuits in certain situations after the applicable statute of limitations expires.”

McCullough v. Bennett, 2024-Ohio-2783, ¶ 11. The statute provides, in pertinent part: “In

any action that is commenced or attempted to be commenced, . . . if the plaintiff fails

otherwise than upon the merits, the plaintiff . . . may commence a new action within one

year after the date of . . . 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). By allowing additional time for a plaintiff to refile an action, this statute “acts

as an exception to the general bar of the statute of limitations” and is “intended to provide

a litigant an adjudication on the merits.” Wilson v. Durrani, 2020-Ohio-6827, ¶ 11. “For

the savings statute to apply, an action must fail other than on the merits and then the

plaintiff must commence a new action within one year of that failure.” Moore v. Mt. Carmel

Health Sys., 2020-Ohio-4113, ¶ 9, citing R.C. 2305.19(A). Additionally, the original action

and the new action must be “substantially the same.” Children’s Hosp. v. Ohio Dept. of

Pub. Welfare, 69 Ohio St. 2d 523, 525 (1982). Ultimately, in determining the applicability

of the saving statute, we must remain mindful that it “ ‘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.’ ” Byers v. Robinson, 2008-Ohio-4833, ¶ 51 (10th

Dist.), quoting Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82 (1960),

paragraph one of the syllabus.

{¶ 12} In analyzing the applicability of the saving statute, we first must determine

whether Fong’s original action, filed in August 2021, was “commenced or attempted to be

commenced.” 2305.19(A). Here, the trial court determined that, pursuant to this court’s

decision in Wells v. Michael, 2006-Ohio-5871 (10th Dist.), the original action was not

“commenced or attempted to be commenced” because Fong failed to substitute Faires’

estate and attempt to serve the estate administrator in the original action prior to dismissal.

In Wells, this court held that the plaintiffs’ attempted service on the deceased defendant

No. 24AP-467 5

“had no legal significance” and therefore “could not be regarded as an attempt to commence

the action” for the purpose of R.C. 2305.19(A). Id. at ¶ 14. Appellees argue Wells controls

the outcome here and requires a finding that the requirements of the saving statute cannot

be established because the original action was not commenced or attempted to be

commenced. We disagree.

{¶ 13} The focus in the Wells case was whether there was, or even can be, an attempt

to commence an action when the defendant named is a deceased person. But in this appeal,

we need not reach the issue of whether the action was “attempted to be commenced”

because Fong’s original action was “commenced” on August 30, 2021. Civ.R. 3(A) states in

part that “[a] civil action is commenced by filing a complaint with the court, if service is

obtained within one year from such filing upon a named defendant.” (Emphasis added.)1

“The date of commencement of an action for Civ.R. 3(A) purposes is the date of filing so

long as service is obtained within one year.” Hubiak v. Ohio Family Practice Ctr., Inc.,

2014-Ohio-3116, ¶ 36 (9th Dist.). Regarding Civ.R. 3(A)’s requirement to obtain service on

“a named defendant,” the Supreme Court of Ohio has observed: “Civ.R. 3(A), notably, does

not require all defendants to have been served for a civil action to be considered

commenced.” (Emphasis deleted.) Beneficial Ohio, Inc. v. Ellis, 2009-Ohio-311, ¶ 18.

{¶ 14} In Wells, the plaintiff did not name an insurer as a defendant in the original

complaint. Unlike in Wells, Fong named both the alleged tortfeasor, Faires, and his insurer,

American National, as defendants in the original complaint, which was filed on August 30,

2021. Service of the summons and complaint was obtained on American National on

September 8, 2021. Because service was obtained on a named defendant within one year

of Fong filing the complaint, Fong’s original action was “commenced” on August 30, 2021,

for the purpose of R.C. 2305.19. On August 16, 2022, the trial court dismissed the

commenced action, without prejudice, based on its determination that Fong did not timely

substitute Faires’ estate for Faires, the decedent.

1 “The service within one year requirement is retained from § 2305.17, R.C., as amended in 1965, and is

based on the philosophy that dockets should be cleared if, within the reasonable time of one year, service

has not been obtained.” 1970 Staff Note, Civ.R. 3. The corresponding federal rule simply states: “a civil

action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3.

No. 24AP-467 6

{¶ 15} Pursuant to R.C. 2305.19, Fong “may commence a new action within one year

after the date of” his “failure otherwise than upon the merits.” On August 14, 2023, Fong

refiled the action against Faires and American National. He again obtained service on

American National but not on Faires. On August 30, 2023, Fong filed a suggestion of death

and a Civ.R. 25 motion for substitution of party.

{¶ 16} The trial court denied Fong’s Civ.R. 25 motion to substitute Faires’ estate

representative for Faires. The trial court reasoned that because this rule only applies to “a

party” and not to someone who has predeceased the litigation, and because Faires died

before Fong filed a complaint, Faires was not “a party” that could be replaced with the estate

representative under the rule. This finding was consistent with the rule’s language. Civ.R.

25(A) states: “If a party dies and the claim is not thereby extinguished, the court shall, upon

motion, order substitution of the proper parties.” Because this rule applies to “part[ies],” it

“only provides for the substitution of parties who died while the litigation was pending and

does not contemplate the substitution of a new party for one who predeceased

commencement of the litigation.” Smith v. Mentor Ridge Health & Rehab., 2023-Ohio-

4659, ¶ 29 (8th Dist.). Thus, because Faires died before Fong filed his complaint, Civ.R. 25

was not a proper means to substitute a party. Although the trial court correctly determined

that Civ.R. 25 does not apply when a named party predeceases the filing of the lawsuit, the

trial court erred in granting summary judgment in favor of appellees.

{¶ 17} In granting summary judgment, the trial court determined that, even if the

saving statute applied, Fong did not commence the new action within one year as required

under that statute, despite rendering the decision less than one year after Fong filed the

new action. As of the date of the trial court’s decision, Fong still had time to request leave

to file an amended complaint under Civ.R. 15, substituting the estate administrator for the

decedent, and then to obtain service on the administrator. An amended complaint that

substitutes the estate administrator for the decedent “must be served on the personal

representative within one year after the original complaint was filed.” McAbee v.

Merryman, 2013-Ohio-5291, ¶ 19 (7th Dist.). See Boggs v. Denmead, 2018-Ohio-2408,

¶ 35 (10th Dist.), quoting Martz v. Field Dev. Group, 2004-Ohio-4066, ¶ 11, 12 (9th Dist.)

(internal quotation marks deleted) (noting that “[t]he relation back feature’ of Civ.R. 15

applies solely to the statute of limitations, and that personal service does not relate back

No. 24AP-467 7

when the correct parties are not properly served”). Therefore, if a motion for leave to

amend the complaint is filed, and the trial court finds that the requirements of Civ.R. 15(C)

are met, the amendment would relate back to the date of the filing of the refiled complaint.

See Warner v. Marshall, 2020-Ohio-1185, ¶ 21, fn. 4 (12th Dist.) (in rejecting a form over

substance argument of the appellee, the court noted that the appellant could have, instead

of naming the administrator of a party’s estate as the defendant in a refiled action, named

the decedent as the defendant, and then amended the complaint and served the estate

administrator as provided by Civ.R. 3(A)).2 Because the trial court entered judgment

awarding appellees summary judgment before the expiration of one year from the date

Fong filed the complaint in the new action, on remand, assuming that Fong is granted leave

to file an amended complaint, the trial court must account for the remainder of that one-

year period in considering Civ.R. 15(C)’s relation back requirements.

{¶ 18} For these reasons, we conclude the trial court erred in granting appellees’

motions for summary judgment. Because the trial court erred in awarding summary

judgment in favor of appellees, we sustain Fong’s sole assignment of error.

IV. Disposition

{¶ 19} Having sustained Fong’s sole assignment of error, we reverse the judgment

of the Franklin County Court of Common Pleas and remand this matter to that court for

further proceedings consistent with law and this decision.

Judgment reversed;

cause remanded.

DORRIAN and EDELSTEIN, JJ., concur.

2 Pursuant to Civ.R. 15(A), after the time for amending a pleading as a matter of course has run, a party may

amend its pleading with the court’s leave, which “shall freely give leave when justice so requires.”

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the

date of the original pleading.” Civ.R. 15(C). If the amendment changes the party against whom a claim is

asserted, it “relates back if the foregoing provision is satisfied and, within the period provided by law for

commencing the action against him, the party to be brought in by amendment (1) has received such notice

of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and

(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action

would have been brought against him.” Id.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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