[Cite as Johnson v. Jefferson Industries Corp., 2015-Ohio-5035.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           MADISON COUNTY




MARCELLE R. JOHNSON,                                    :

        Plaintiff-Appellant,                            :          CASE NO. CA2015-06-019

                                                        :               OPINION
   - vs -                                                                12/7/2015
                                                        :

JEFFERSON INDUSTRIES                                    :
CORPORATION, et al.,
                                                        :
        Defendants-Appellees.
                                                        :



         CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. CVD 20140259



David G. Schmidt, 614 West Superior Avenue, #1500, Cleveland, Ohio 44113, for plaintiff-
appellant

Brian D. Hall, LaTawnda N. Moore, 41 South High Street, Suite 3000, Columbus, Ohio
43215, for defendants-appellees, Jefferson Industries Corp. and Administrator, BWC



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Marcelle R. Johnson, appeals a decision of the Madison

County Court of Common Pleas granting summary judgment in favor of defendant-appellee,

Ohio Bureau of Workers' Compensation ("BWC"), in a workers' compensation action. For

the reasons set forth below, we affirm the decision of the trial court.
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        {¶ 2} It is undisputed that Johnson sustained an industrial injury on March 17, 2009.

Her claim was initially allowed for bilateral knee contusions and a sprain of the left knee and

leg. On September 10, 2009, Johnson sought to additionally participate in the workers'

compensation fund for a right ACL tear. That additional claim was denied.

        {¶ 3} On March 15, 2010, Johnson filed an appeal in the Cuyahoga Court of

Common Pleas requesting the additional allowance for the right ACL tear (Johnson I). That

appeal was subsequently transferred to the Madison County Court of Common Pleas. On

June 30, 2010, the trial court dismissed the matter without prejudice.

        {¶ 4} On June 16, 2011, Johnson refiled the action in the Madison County Court of

Common Pleas (Johnson II). The court ordered that Johnson "submit to an independent

medical exam within the next 45 days or the matter will be dismissed with prejudice." On

October 31, 2013, the court again dismissed the matter without prejudice.1

        {¶ 5} On October 31, 2014, Johnson filed her complaint for the third time, once again

alleging a right to participate in the workers' compensation fund for a right ACL tear (Johnson

III).2 The trial court granted BWC's motion for summary judgment on the third complaint,

finding that Johnson invoked the Ohio savings statute to file her second complaint, and

therefore she was not permitted to invoke it a second time.

        {¶ 6} Johnson now appeals that decision, raising a single assignment of error for

review.

                            Summary Judgment Standard of Review



1. The parties agree that Johnson attended an independent medical exam. However, Johnson does not
concede BWC's assertion that she failed to alert the court of her actions.

2. Johnson states that she mailed the complaint to the Madison County Court of Common Pleas on October 29,
2014, but that she also filed the complaint in Cuyahoga County on October 31, 2014 in order to ensure that the
recommencement was filed within one year of the dismissal of the previous action. The Cuyahoga action was
subsequently transferred to Madison County.


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       {¶ 7} Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio

App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). This court's review of a trial court's ruling on a

summary judgment motion is de novo. Lindsay P. v. Towne Properties Asset Mgt. Co., Ltd.,

12th Dist. Butler No. CA2012-11-215, 2013-Ohio-4124, ¶ 16. In applying the de novo

standard, the appellate court is required to "us[e] the same standard that the trial court

should have used, and * * * examine the evidence to determine whether as a matter of law

no genuine issues exist for trial." Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶

9 (12th Dist.).

       {¶ 8} Civ.R. 56 sets forth the summary judgment standard and requires for summary

judgment that (1) there be no genuine issues of material fact to be litigated, (2) the moving

party is entitled to judgment as a matter of law, and (3) reasonable minds can come to only

one conclusion being adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th

Dist. Fayette No. CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of

demonstrating that there is no genuine issue of material fact.          Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

       {¶ 9} In response, the nonmoving party "may not rest on the mere allegations of his

pleading, but * * * by affidavit or as otherwise provided in Civ.R. 56, must set forth specific

facts showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385 (1996). In determining whether a genuine issue of material fact exists, the

evidence must be construed in the nonmoving party's favor.             Walters v. Middletown

Properties Co., 12th Dist. Butler No. CA2001-10-249, 2002-Ohio-3730, ¶ 10. A dispute of

fact can be considered "material" if it affects the outcome of the litigation. Myers v. Jamar

Ents., 12th Dist. Clermont No. CA2001-06-056, 2001 WL 1567352, *2 (Dec. 10, 2001). A

dispute of fact can be considered "genuine" if it is supported by substantial evidence that
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exceeds the allegations in the complaint.       Id.   We are mindful of these principles in

addressing the following assignment of error.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR

SUMMARY JUDGMENT.

       {¶ 12} Within this assignment of error, Johnson raises two arguments. First, Johnson

argues that the double-dismissal rule of Civ.R. 41(A) does not prevent the filing of Johnson III

because the prior actions were not voluntarily dismissed. Second, Johnson argues that R.C.

2305.19, the Ohio savings statute, does not prevent the filing of Johnson III because it was

commenced within one year of the preceding involuntary dismissal and within the applicable

statute of limitations.

                                  Double-Dismissal Rule

       {¶ 13} The double-dismissal rule contained in Civ.R. 41(A) provides that when a

plaintiff files two unilateral notices of dismissal regarding the same claim, the second notice

of dismissal functions as an adjudication on the merits of that claim, regardless of any

language in the second notice stating that the dismissal is without prejudice. Olynyk v.

Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, syllabus, ¶ 10. Thus, in order for the double-

dismissal rule to apply, the two preceding dismissals must be voluntary dismissals under

Crim.R. 41(A).

       {¶ 14} Here, it is undisputed that Johnson I and Johnson II were involuntarily

dismissed. Accordingly, the double-dismissal rule does not apply to prevent the filing of

Johnson III. However, regardless of whether the double-dismissal rule applies, a refiling

must occur within the applicable statute of limitations or during the extended period permitted

under R.C. 2305.19, the Ohio savings statute.

                                   Ohio Savings Statute
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       {¶ 15} Pursuant to R.C. 2305.19, the Ohio savings statute, a plaintiff has a limited

period of time to refile a dismissed action that would otherwise be barred by operation of the

statute of limitations. Int'l. Periodical Distrib. v. Bizmart, Inc., 95 Ohio St.3d 452, 2002-Ohio-

2488, ¶ 7. In pertinent part, R.C. 2305.19(A) provides,

               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 plaintiff's failure otherwise than upon the
               merits or within the period of the original applicable statute of
               limitations, whichever occurs later.

       {¶ 16} Although this court has previously recognized R.C. 2305.19 is a remedial

statute that is to be given a liberal construction, we also acknowledge the savings statute

cannot be used to keep actions alive indefinitely. Eichler at ¶ 18; Hembree v. Mendenhall,

12th Dist. Butler No. CA2006-06-129, 2007-Ohio-459, ¶ 8. Furthermore, Ohio courts have

consistently held that the savings statute may not be utilized numerous times. Thomas v.

Freeman, 79 Ohio St.3d 221, 227 (1997). Accord Herbert v. Farmer, 12th Dist. Warren No.

CA2013-02-016, 2014-Ohio-877, ¶ 20. Indeed, if the rule were otherwise, "a plaintiff could

utilize the savings statute to keep a cause of action alive long past the time that the statute of

limitations expired. This would directly contradict the Ohio Supreme Court's pronouncement

that R.C. 2305.19 is neither a tolling provision nor a statute of limitations unto itself." Mihalcin

v. Hocking College, 4th Dist. Athens No. 99CA32, 2000 WL 303138, *4 (Mar. 20, 2000),

citing Reese v. Ohio State Univ. Hosp., 6 Ohio St.3d 162 (1983).

       {¶ 16} In the present case, there is a dispute as to whether the actions were filed

within the applicable statute of limitations. If the statute of limitations had not lapsed at the

time the complaints were filed, Johnson was permitted to refile the second and third

complaints without the necessity of invoking the savings statute because they were

involuntarily dismissed without prejudice. Alternatively, if the statute of limitations had not

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passed at the time Johnson I and Johnson II were filed, but subsequently expired before the

filing of Johnson III, that action would remain permissible under R.C. 2305.19 within one year

of the dismissal of Johnson II. However, if the statute of limitations expired prior to the filing

of Johnson II, and thus required usage of the savings statute in that instance, Johnson would

not be permitted to invoke the savings statute a second time in order to file Johnson III.

       {¶ 17} Johnson argues that the statute of limitations for the action is governed by R.C.

4123.84 and R.C. 4123.52. In relevant part, R.C. 4123.84 provides as follows:

              (A) In all cases of injury or death, claims for compensation or
              benefits for the specific part or parts of the body injured shall be
              forever barred unless, within two years after the injury or death:

              (1) Written or facsimile notice of the specific part or parts of the
              body claimed to have been injured has been made to the
              industrial commission or the bureau of workers' compensation[.]

(Emphasis added.)

       {¶ 18} Johnson asserts that the two-year statute of limitations was satisfied by the

allowance of the bilateral knee injuries. Johnson then cites R.C. 4123.52 for the proposition

that the statute of limitations in the present action extends to five years after the last payment

of a medical bill or payment of compensation. However, R.C. 4123.52 provides for the

continuing jurisdiction of the industrial commission and workers' compensation administrator,

not for the jurisdiction of a court of common pleas over an appeal of an industrial commission

decision. There is no dispute that the claim was timely filed with the industrial commission or

that the industrial commission had continuing jurisdiction. What is at issue in the present

case is whether the actions challenging the industrial commission's decision fell within the

statute of limitations for filing such actions.

       {¶ 19} BWC argues that the proper statute of limitations is found in R.C. 4123.512(A),

which provides as follows:

              (A) The claimant or the employer may appeal an order of the
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                                                                         Madison CA2015-06-019

                industrial commission made under division (E) of section
                4123.511 of the Revised Code in any injury or occupational
                disease case, other than a decision as to the extent of disability
                to the court of common pleas of the county in which the injury
                was inflicted or in which the contract of employment was made if
                the injury occurred outside the state, or in which the contract of
                employment was made if the exposure occurred outside the
                state. * * * The appellant shall file the notice of appeal with a
                court of common pleas within sixty days after the date of the
                receipt of the order appealed from or the date of receipt of the
                order of the commission refusing to hear an appeal of a staff
                hearing officer's decision under division (D) of section 4123.511
                of the Revised Code. The filing of the notice of the appeal with
                the court is the only act required to perfect the appeal.

(Emphasis added.)

          {¶ 20} BWC is correct that 60 days is the proper statute of limitations for filing an

appeal from an industrial commission decision. However, in the present case, the notice of

appeal was timely filed and BWC conceded that the notice remained pending throughout the

proceedings. Therefore, that statute of limitations was satisfied and did not bar the present

action.

          {¶ 21} Nevertheless, while the notice of appeal was timely filed, we find there is

another statute of limitations that applies in the present case. R.C. 4123.512(D) sets forth

the applicable statute of limitations for filing a petition following the filing of a notice of appeal.

Specifically, R.C. 4123.512(D) provides that,

                claimant shall, within thirty days after the filing of the notice of
                appeal, file a petition containing a statement of facts in ordinary
                and concise language showing a cause of action to participate or
                to continue to participate in the fund and setting forth the basis
                for the jurisdiction of the court over the action.

(Emphasis added.)

          {¶ 22} In Fowee v. Wesley Hall, Inc., 108 Ohio St.3d 533 (2006), ¶ 20, the Ohio

Supreme Court recognized that R.C. 4123.512(D) sets forth a "30-day statute of limitations

for filing the required petition."     The Fowee Court held that an action in a workers'


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                                                                      Madison CA2015-06-019

compensation appeal is commenced upon the filing of the petition, not the notice of appeal.

Id. at ¶ 15. In that case, the employer timely filed a notice of appeal, and the employee

timely filed the required complaint. The employee subsequently dismissed the complaint.

One year and 14 days after the dismissal, the employer moved for judgment on the pleadings

because the employee failed to refile the complaint within one year. The Ohio Supreme

Court held that the employee's failure to refile the complaint within the year allowed by the

savings statute entitled the employer to judgment on the pleadings.

       {¶ 23} Therefore, based on the Ohio Supreme Court decision in Fowee, we find that

regardless of whether Johnson's notice of appeal was timely filed, the actions themselves

can nonetheless be time-barred based upon the R.C. 4123.512(D) requirement that the

petition or complaint be filed within 30 days of the notice of appeal.

       {¶ 24} The parties agree that the notice of appeal and complaint in Johnson I were

timely filed on March 15, 2010. Johnson I was involuntarily dismissed otherwise than upon

the merits on June 30, 2010. While the filing of Johnson II was outside the applicable 30-day

statute of limitations for filing the complaint, it was permitted under the savings statute as it

was filed within one year of the previous dismissal. However, when Johnson filed her

complaint for a third time in Johnson III, she was outside of the statute of limitations and had

already invoked the savings statute in Johnson II. Thomas at 227. Thus, Johnson could not

invoke the savings statute a second time to file Johnson III. Herbert, 2014-Ohio-877 at ¶ 20.

Accordingly, the complaint in Johnson III was time-barred and BWC's motion for summary

judgment was properly granted.

       {¶ 25} In light of the foregoing, having found that (1) Johnson III was filed outside the

statute of limitations for filing a petition with the trial court, and (2) the Ohio savings statute

was previously invoked in filing Johnson II and thus could not be invoked to permit the filing

of Johnson III, Johnson's sole assignment of error is overruled.
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                                                Madison CA2015-06-019

{¶ 26} Judgment affirmed.


M. POWELL, P.J., and HENDRICKSON, J., concur.




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