John W. Austin, Jr., Plaintiff-Appellant,
Mohamed Abdi, et al. Defendants-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
brief: John W. Austin, Jr., pro se. Argued: John W. Austin,
brief: Law Office of Daniel P. Whitehead, Daniel P.
Whitehead, and Alix J. West, for defendants-appellees.
Argued: Alix J. West.
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
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.
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. Based on such lack of specificity or
adherence to the rules ...