Rector v. Dorsey

[Cite as Rector v. Dorsey, 2021-Ohio-2675.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

DAN RECTOR, :

Plaintiff-Appellant, :
No. 109835
v. :

AMELIA DORSEY, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 5, 2021

Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-19-919233

Appearances:

Vick Law, L.L.C., and Gary A. Vick, Jr., for appellant.

Michael R. Shanabruch, for appellee.

SEAN C. GALLAGHER, J.:

Dan Rector appeals the summary judgment granted in favor of

Amelia Dorsey, which was based on Rector’s attempt to invoke R.C. 2305.10 a

second time resulting in the dismissal of his third complaint arising from a motor
vehicle accident that occurred on February 8, 2016. The accident was allegedly

caused by Dorsey. For the following reasons, we affirm.

This appeal is based on a procedural issue. Rector filed his first

complaint in August 2017. On February 7, 2018, the day before the statute of

limitations for the tort claim expired under R.C. 2305.10(A), Rector voluntarily

dismissed his action without prejudice under Civ.R. 41(A)(1)(a). On that same day,

Rector refiled a second complaint advancing identical allegations. After Rector

failed to appear for a court-ordered discovery deposition, Dorsey filed a motion to

dismiss under Civ.R. 26 and 37. The court dismissed the action without prejudice

on April 9, 2019. Nearly four months later, Rector filed the third action again,

advancing the same claims.

The trial court, upon motion, granted summary judgment under

Civ.R. 56 in favor of Dorsey. According to the trial court, R.C. 2305.19, commonly

known as Ohio’s Saving Statute, provides that in all actions, when a case fails

otherwise than on the merits, the plaintiff has the right to refile the action “either

within the original period of limitations or within one year after the plaintiff’s

failure.” As a result, the trial court determined that under R.C. 2305.19, after

dismissing the first action on February 7, 2018, Rector had until the later of the

original period of the limitations, February 8, 2018, or until February 7, 2019, to

refile the action under the savings statute. In other words, the refiling of the

dismissed action invoked the savings statute and extended the original limitations

period until February 7, 2019 — being the later of the two dates. According to the
trial court, Rector’s decision to refile the action immediately did not circumvent the

plain and unambiguous language of the statute. The trial court expressly

distinguished the current version of the savings statute, amended in 2004, from the

previous “malpractice trap” in which the statute only applied to the dismissal of an

action after the expiration of the statute of limitations. Eppley v. Tri-Valley Local

School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 8.

Summary judgment rulings are reviewed de novo, and appellate

courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Appellate courts provide no deference

to the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate. Under Civ.R. 56, summary judgment is

appropriate when no genuine issue exists as to any material fact and, viewing the

evidence most strongly in favor of the nonmoving party, reasonable minds can reach

only one conclusion and that conclusion is adverse to the nonmoving party.

On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that establish his or her

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party must then point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. If the nonmoving

party fails to meet this burden, summary judgment is appropriate. Id.
 In this appeal, Rector claims that his second filing of the complaint

did not invoke R.C. 2305.19 because he filed the action within the original statute of

limitations. According to Rector, this entitled him to file the third action since the

third filing was the first invocation of the savings statute in the procedural history of

the case. In support, Rector cites Johnson v. Jefferson Indus. Corp., 2015-Ohio-

5035, 60 N.E.3d 424, ¶ 16 (12th Dist.). The Johnson panel opined that if the plaintiff

had refiled the second and third actions stemming from the same acts or

occurrences within the original statute of limitations, the plaintiff would have been

permitted to file those actions without invoking the savings statute. That obiter

dictum, however, is not in harmony with the majority of jurisdictions that have

reached the opposite conclusion. We cannot rely on the Johnson dicta. State v.

Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649 ¶ 27 (courts erred as a

matter of law in relying on dicta). And regardless, the Johnson panel concluded that

the latest action filed was time-barred irrespective of the panel’s timing discussion.

“‘Savings statutes operate to give a plaintiff limited periods in which

to refile a dismissed claim that would otherwise be time-barred.’” Wick v. Lorain

Manor Inc., 9th Dist. Lorain No. 12CA010324, 2014-Ohio-4329, ¶ 8, quoting

Internatl. Periodical Distrib. v. Bizmart, Inc., 95 Ohio St.3d 452, 2002-Ohio-2488,

768 N.E.2d 1167, ¶ 7. R.C. 2305.19(A) provides in pertinent part:

[i]n 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 plaintiff's
failure otherwise than upon the merits or within the period of the
original applicable statute of limitations, whichever occurs later.
Under a plain reading of the unambiguous language in the statute, following the

dismissal of “any action” that fails otherwise than on the merits, the plaintiff has the

right to refile the new action within one of two dates: “either the time left in the

limitations period, or one year from the date of the prior dismissal.” Royster v.

Imbrogno, S.D.Ohio No. 2:16-cv-1174, 2017 U.S. Dist. LEXIS 57507, 9 (Apr. 14,

2017), citing CapitalSource Bank FBO Aeon Fin., L.L.C. v. Donshirs Dev. Corp., 8th

Dist. Cuyahoga No. 99032, 2013-Ohio-1563. Under R.C. 2305.19(A), although the

limitations period is extended to the later of the two dates, filing an action before the

expiration of the original limitations period is of no practical value.

In CapitalSource Bank, it was concluded that in 2004 the savings

statute under R.C. 2305.19 was amended to close the “malpractice trap” and permit

a party to refile an original action within one year after dismissal “‘or the time left

under the statute of limitations, whichever is longer.’” Id., quoting R.C. 2305.19(A);

Eppley v. Tri-Valley Local School Dist., 5th Dist. Muskingham No. CT2007-0022,

2008 Ohio 32, ¶ 17, rev’d on other grounds, Eppley, 122 Ohio St.3d 56, 2009-Ohio-

1970, 908 N.E.2d 401. Before the amendment, R.C. 2305.19 expressly applied to

actions dismissed after the expiration of the applicable statute of limitations. Id.

Under the older version of the rule, plaintiffs who dismissed their action before the

expiration of the statute of limitations could not avail themselves of R.C. 2305.19.

The legislature corrected this discrepancy by omitting language limiting the

application of the savings statute. From this omission, the CapitalSource Bank
Court held that the amended language of R.C. 2305.19 no longer distinguished cases

dismissed before the expiration of the statute of limitations from those dismissed

after. Id. In any action that has been dismissed, any refiling of the claims necessary

occurs under R.C. 2305.19.

“The savings statute can be used only once to refile a case.” Thomas

v. Freeman, 79 Ohio St.3d 221, 227, 680 N.E.2d 997 (1997). The amendment to R.C.

2305.19 that occurred in 2004 did not alter that conclusion. See Linthicum v.

Physicians Anesthesia Serv., 1st Dist. Hamilton No. C-180382, 2019-Ohio-3940,

¶ 8-9, citing Duncan v. Stephens, 8th Dist. Cuyahoga No. 83238, 2004-Ohio-2402,

¶ 21; Wick at ¶ 8; Hancock v. Kroger Co., 103 Ohio App.3d 266, 269, 659 N.E.2d

336 (10th Dist.1995); Estate of Carlson v. Tippett, 122 Ohio App.3d 489, 702 N.E.2d

143 (11th Dist.1997); Jefferson Indus. Corp., 2015-Ohio-5035, 60 N.E.3d 424, at ¶ 16

(12th Dist.). Further, even if the plaintiff refiles the action before the expiration of

the statute of limitations, the refiled complaint is considered to be filed through the

invocation of R.C. 2305.19. Brown v. Solon Pointe at Emerald Ridge, 8th Dist.

Cuyahoga No. 99363, 2013-Ohio-4903, ¶ 24 (the refiled complaint was filed within

the statute of limitations but was considered to be filed under R.C. 2305.19 such that

the third filing of the complaint was time-barred); Owens College Nursing Students

v. Owens State Community College, 6th Dist. Wood No. WD-14-012, 2014-Ohio-

5210, ¶ 29-30; but see Lindsey v. Schuler, 7th Dist. Mahoning No. 11-MA-205, 2012-

Ohio-3675, ¶ 14-15 (the court based its conclusion, that the savings statute had no
application since the statute of limitations had not expired when the action was

dismissed, on case law superseded by the 2004 amendment to R.C. 2305.19).

In this case, Rector dismissed his original action on February 7, 2018.

Under R.C. 2305.19, Rector had the later of two dates to refile that action for the

action to be considered timely. Rector had a right to refile the action the later of

February 8, 2018, or February 7, 2019, but any action filed after February 7, 2019,

would be considered time-barred. R.C. 2305.19. Rector’s decision to immediately

refile the action on February 7, 2017, within the original statute of limitations period

did not circumvent the unambiguous language of the savings statute. CapitalSource

Bank at ¶ 20. As a result, and having once availed himself of R.C. 2305.19 through

the filing of the second action on February 7, 2018, Rector could not twice invoke

R.C. 2305.19 for the third complaint that was filed in August 2019, eight months

after the expiration of the extended period set forth in R.C. 2305.19(A). Freeman at

227. As this issue is one of law, the trial court did not err in granting summary

judgment in favor of Dorsey. The third complaint filed after the expiration of the

statute of limitations was time-barred.

Considering the above, we need not render any conclusions on

Rector’s claims that the trial court erred in applying the double-dismissal rule, which

prohibits a plaintiff from filing successive actions after twice invoking Civ.R.

41(A)(1) to unilaterally dismiss an action. Fradette v. Gold, 157 Ohio St.3d 13, 2019-

Ohio-1959, 131 N.E.3d 12, ¶ 3. Although the trial court never expressly invoked the

doctrine, our above conclusion would render any discussion on the double-dismissal
rule to be advisory in nature. Appellate courts generally avoid issuing advisory

opinions as a matter of policy. Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216,

2009-Ohio-4231, 915 N.E.2d 622, ¶ 9.

Based on the foregoing discussion, we affirm the decision of the trial

court granting summary judgment in favor of Dorsey.

It is ordered that appellee recover from appellant 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.

_______________________
SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
EMANUELLA D. GROVES, J., CONCUR