Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Austin v. Abdi

Court of Appeals of Ohio, Tenth District

August 31, 2017

John W. Austin, Jr., Plaintiff-Appellant,
v.
Mohamed Abdi, et al. Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-7313

          On brief: John W. Austin, Jr., pro se. Argued: John W. Austin, Jr.

          On brief: Law Office of Daniel P. Whitehead, Daniel P. Whitehead, and Alix J. West, for defendants-appellees. Argued: Alix J. West.

          DECISION

          BRUNNER, J.

         {¶ 1} This matter relates to the refiling of an action for money damages by plaintiff-appellant, John W. Austin, Jr., against defendants-appellees, Mohamed Abdi, Abdi Abdi, and GEICO Casualty Company. Austin appeals from a judgment of the Franklin County Court of Common Pleas that granted appellees' motion for summary judgment because Austin's refiling of the underlying case was untimely. For the following reasons, we affirm the judgment of the trial court.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 2} The record indicates this matter relates to a motor vehicle accident Austin alleges occurred on September 2, 2012. Austin had previously brought his claims in a timely filed action before the trial court. Austin voluntary dismissed that case without prejudice pursuant to Civ.R. 41 on August 1, 2015, a Saturday. On August 4, 2015, the trial court entered a decision granting Austin's motion and dismissed the case without prejudice. Austin refiled his case on August 4, 2016.

         {¶ 3} On November 8, 2016, appellees filed a motion for summary judgment pursuant to Civ.R. 56. They argued that Austin's August 1, 2014 motion to dismiss actually was a self-executing voluntary dismissal pursuant to Civ.R. 41(A) that terminated the case on its filing. Based on R.C. 2305.19, they argued Austin was required to refile on or before August 1, 2016. Hence, they argued Austin's refiling was untimely under the statute.

         {¶ 4} The trial court referred the matter to a magistrate pursuant to Civ.R. 53 and LocR. 99.02 of the Franklin County Court of Common Pleas, General Division. On November 24, 2016, Austin filed a motion to dismiss and deny appellees' motion for summary judgment to which appellees did not file a reply.

         {¶ 5} On January 17, 2017, the magistrate conducted an evidentiary hearing to address appellees' motion for summary judgment. The hearing was recorded by electronic means. At the hearing, appellees were represented by legal counsel; Austin did not appear. Later that same date, the magistrate entered a decision, setting forth findings of fact and conclusions of law, granting appellees' motion for summary judgment. The magistrate found that, if Austin's previous motion to dismiss was electronically uploaded on Saturday, August 1, 2015, the filing would have been treated as having been filed on the next business day, i.e., Monday, August 3, 2015, in accordance with the trial court's administrative order governing e-filing, Section VIII. The magistrate therefore concluded that Austin's refiling on August 4, 2016 was one day past the statutory refiling deadline and time-barred.

         {¶ 6} No party filed objections to the magistrate's decision, and on January 31, 2017, the trial court adopted the magistrate's decision, including the findings of facts and conclusions of law and granted appellees' motion for summary judgment, dismissing the matter.

         {¶ 7} On February 28, 2017, Austin filed his notice of appeal pro se from the trial court's judgment. On May 1, 2017, he filed his brief. No transcript of the January 17, 2017 hearing has been filed.

         II. ASSIGNMENT OF ERRORS

         {¶ 8} Austin's brief does not comply with App.R. 16(A)(3) because he failed to set forth specific assignments of error. As the appellant in this case, Austin was required to include in his brief a statement of the assignments of error, with reference to the place or places in the record to which he assigns error. Although Austin seeks to appeal from the trial court's judgment adopting the magistrate's decision, his brief omits any mention of the magistrate's decision or the trial court's adoption of it. Instead, the brief appears to assert three arguments in support of Austin's contention that the refiled action was timely.[1] Based on such lack of specificity or adherence to the rules ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.