[Cite as Hines v. Univ. of Akron, 2013-Ohio-4853.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

VINCE HINES 

 Plaintiff 

 v. 

UNIVERSITY OF AKRON 

 Defendant 

Case No. 2011-11009 

Judge Patrick M. McGrath 

Magistrate Robert Van Schoyck 

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

{¶ 1} On April 12, 2013, defendant filed a motion for summary judgment pursuant 

to Civ.R. 56(B). With leave of court, plaintiff filed a response on May 6, 2013. On May 

8, 2013, defendant filed a motion for leave to file a reply, which is GRANTED instanter. 

On May 16, 2013, plaintiff filed a motion for leave to file an opposing affidavit; however, 

inasmuch as Civ.R. 56(C) provides that opposing affidavits may be filed at any time 

prior to the day of hearing, which in this case had been set for May 20, 2013, leave of 

court was not necessary and the motion is thus DENIED as moot. On May 20, 2013, 

plaintiff filed a motion for leave to file a supplemental response, which is GRANTED 

instanter. 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 
Case No. 2011-11009 - 2 - ENTRY

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can 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 or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 4} Plaintiff brings this action for negligence arising out of an automobile 

accident that occurred in the city of Columbus on March 19, 2008. Plaintiff alleges that 

he sustained injuries when a vehicle driven by Wassel AlBodour collided with the 

vehicle in which he was a passenger. Plaintiff alleges, and defendant admits, that 

AlBodour was an employee of defendant and was acting within the course and scope of 

his employment at the time of the accident. 

{¶ 5} In its motion for summary judgment, defendant asserts that plaintiff’s claim 

is barred by the applicable statute of limitations, R.C. 2743.16(A). 

{¶ 6} R.C. 2743.16(A) states: 

{¶ 7} “Subject to division (B) of this section, civil actions against the state 

permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no 

later than two years after the date of accrual of the cause of action or within any shorter 

period that is applicable to similar suits between private parties.” 

{¶ 8} Plaintiff commenced this action on September 12, 2011, more than two 

years after the accident. Plaintiff asserts, however, that the action is rendered timely by 

operation of the saving statute, R.C. 2305.19. 

{¶ 9} R.C. 2305.19(A) states, in part: 

{¶ 10} “In any action that is commenced or attempted to be commenced, if in due 

time * * * the plaintiff fails otherwise than upon the merits, the plaintiff * * * may 

commence a new action within one year after the date of the * * * failure otherwise than 
Case No. 2011-11009 - 3 - ENTRY

upon the merits or within the period of the original applicable statute of limitations, 

whichever occurs later.” 

{¶ 11} “R.C. 2305.19 will ‘save’ a re-filed action that would otherwise be barred by 

a statute of limitations when the requirements of the rule have been satisfied, and ‘when 

the original suit and the new action are substantially the same.’” Carl L. Brown, Inc. v. 

Lincoln Natl. Life Ins., 10th Dist. No. 02AP-225, 2003-Ohio-2577, ¶ 41, quoting 

Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio St.2d 523, 525 (1982); see also 

Heilprin v. Ohio State Univ. Hosps., 31 Ohio App.3d 35 (10th Dist.1986). “The actions 

are not substantially the same, however, when the parties in the original action and 

those in the new action are different.” Children’s Hosp. at 525. 

{¶ 12} It is undisputed that on March 17, 2010, plaintiff commenced an action 

arising from the accident in the Franklin County Common Pleas Court, naming as 

defendants the driver of the vehicle in which he was a passenger, the owner of that 

vehicle, AlBodour, AlBodour’s personal insurer, and “John/Jane Doe Insurance 

Company.” On August 19, 2010, an assistant attorney general, appearing on 

AlBodour’s behalf, filed a motion to dismiss under Civ.R. 12(B)(1), arguing that the 

common pleas court lacked jurisdiction to the extent that AlBodour was acting within the 

scope of his employment with defendant at the time of the accident and had not been 

determined by the court of claims to be personally liable pursuant to R.C. 2743.02(F) 

and 9.86. Before any ruling was made on that motion, plaintiff voluntarily dismissed the 

action without prejudice on September 14, 2010, pursuant to Civ.R. 41(A)(1)(a). 

{¶ 13} When plaintiff commenced the present action in this court on September 

12, 2011, the University of Akron, which had not been a party to the original action, was 

named as a party defendant. (The complaint also named AlBodour, the driver of the 

vehicle in which he was a passenger, and the owner of that vehicle as defendants, but 

these individuals were dismissed in a pre-screening entry on the basis that, pursuant to 

R.C. 2743.02(E), the only defendant in original actions in the court of claims is the 

state.) 
Case No. 2011-11009 - 4 - ENTRY

{¶ 14} Upon review, the only reasonable conclusion to be drawn is that because 

the University of Akron was not a party to the original action in the common pleas court, 

the action before this court is not “substantially similar” for purposes of R.C. 2305.19(A). 

Therefore, R.C. 2305.19(A) does not operate to save plaintiff’s claim, which was filed 

outside the applicable statute of limitations. Although plaintiff argues that the limitations 

period should have been tolled inasmuch as he did not know of AlBodour’s status as a 

state employee until the filing of the August 19, 2010 motion to dismiss, there is no 

evidence that such information had been concealed from plaintiff or was otherwise 

undiscoverable. “[A] plaintiff need not have discovered all the relevant facts necessary 

to file a claim in order to trigger the statute of limitations.” Luft v. Perry Cty. Lumber & 

Supply Co., 10th Dist. No. 02AP-559, 2003-Ohio-2305, ¶ 58. 

{¶ 15} Accordingly, the court concludes that there are no genuine issues of 

material fact and that defendant is entitled to judgment as a matter of law. Therefore, 

defendant’s motion for summary judgment is GRANTED and judgment is rendered in 

favor of defendant. All previously scheduled events are VACATED. Court costs are 

assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment 

and its date of entry upon the journal. 

 _____________________________________ 

 PATRICK M. MCGRATH 

 Judge 

cc: 

 

David J. Betras 

6630 Seville Drive #1 

Canfield, Ohio 44406 

Velda K. Hofacker

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

001 

Filed June 7, 2013 
Case No. 2011-11009 - 5 - ENTRY

To S.C. Reporter October 31, 2013