[Cite as Wright v. Proctor-Donald, 2013-Ohio-1973.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
JANICE WRIGHT                                         :       Hon. W. Scott Gwin, P.J.
                                                      :       Hon. Patricia A. Delaney, J.
                        Plaintiff-Appellant           :       Hon. Craig R. Baldwin, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2012-CA-00154
BEVERLY PROCTOR-DONALD,                               :
ESQ.                                                  :
                                                      :       OPINION
                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2012CV00695


JUDGMENT:                                                 Affirmed


DATE OF JUDGMENT ENTRY:                                   May 13, 2013


APPEARANCES:

For Plaintiff-Appellant                                   For Defendant-Appellee

JACK COOPER                                               JONATHAN PHILIPP
KRISTEN S. MOORE                                          PHILIPP & GREGORY
DAY, KETTERER, LTD                                        5005 Rockside Road
200 Market Avenue North                                   Suite 200
Canton, OH 44702                                          Independence, OH 44131
[Cite as Wright v. Proctor-Donald, 2013-Ohio-1973.]


Gwin, P.J.

        {¶1}    Appellant Janice Wright appeals the July 20, 2012 judgment entry of the

Stark County Court of Common Pleas.

                                         Facts & Procedural History

        {¶2}    On May 18, 2009, appellant retained appellee Beverly Proctor-Donald,

Esq. as her attorney to handle a dental malpractice claim against Dr. Michael Crites.

The one year statute of limitations for dental malpractice expired on May 30, 2009 and

appellee failed to file a complaint on appellant’s behalf by this date. Appellee told

appellant on October 27, 2009 that the statute of limitations for the dental malpractice

claim had elapsed and appellee withdrew her representation of appellant with respect to

the claim on November 17, 2009.

        {¶3}    Appellant filed a pro se complaint against appellee for legal malpractice on

May 10, 2010. The trial court sua sponte dismissed the complaint “other than on the

merits” on May 19, 2010 for the failure to assert a recognizable claim.           Appellant

obtained counsel and re-filed her legal malpractice complaint against appellee on

October 15, 2010. On March 3, 2011, appellant dismissed the legal malpractice action

pursuant to Civil Rule 41(A) and indicated she was “reserv[ing] her right to re-file her

complaint within one year of today’s date.” Appellant re-filed her legal malpractice claim

against appellee on March 1, 2012, alleging appellee negligently failed to bring an

action against Dr. Crites before the expiration of the one year statute of limitations for

dental malpractice claims.

        {¶4}    Appellee moved to dismiss the March 1, 2012 complaint pursuant to Civil

Rule 12(B)(6), arguing appellant could not rely on Ohio’s savings statute and therefore
Stark County, Case No. 2012-CA-00154                                                    3


the statute of limitations barred appellant’s claim for legal malpractice. The trial court

granted appellee’s motion to dismiss on July 20, 2012, finding the complaint to be

barred by the statute of limitations

       {¶5}    Appellant filed an appeal of the trial court’s July 20, 2012 judgment entry

and raises the following assignment of error on appeal:

       {¶6}    “I. THE TRIAL COURT ERRED IN DISMISSING MS. WRIGHT’S

CLAIMS, BECAUSE (1) SHE DID NOT PREVIOUSLY USE OHIO’S SAVINGS

STATUTE AND WAS ENTITLED TO ITS PROTECTION IN THIS CASE, (2) THE TRIAL

COURT WAS REQUIRED TO LIBERALLY CONSTRUE THE SAVINGS STATUTE,

WHICH IT DID NOT, (3) THE TRIAL COURT WRONGLY INTERPRETED THE

LEGISLATIVE INTENT OF THE SAVINGS STATUTE, AND (4) EVEN ASSUMING THE

TRIAL COURT’S STATUTORY INTERPRETATION WAS CORRECT, IT SHOULD

HAVE BEEN APPLIED PROSPECTIVELY.”

       {¶7}   The standard of review on a Civil Rule 12(B)(6) motion to dismiss is de

novo. Greely v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990).    In a de novo analysis, we must accept all factual allegations of the

complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

                                   Utilizing the Savings Statute

       {¶8}   Appellant states she is entitled to use the savings statute when filing her

March 1, 2012 complaint. Appellant argues the application of the savings statute to her

March 1st complaint does not result in her using the savings statute multiple times as

the savings statute was not triggered by her second complaint in October of 2010
Stark County, Case No. 2012-CA-00154                                                      4


because that case was filed within the original statute of limitations for the legal

malpractice claim. We disagree.

       {¶9}   The current version of the savings statute, codified in R.C. 2305.19(A) and

effective in 2004, provides as follows:

              In any action that is commenced or attempted to be commenced, if

       in due time a judgment for the plaintiff is reversed or if the plaintiff fails

       otherwise than upon the merits, the plaintiff, or if the plaintiff dies and the

       cause of action survives, the plaintiff’s representative may commence a

       new action within one year after the date of the reversal of the judgment or

       the plaintiff’s failure otherwise than upon the merits or within the period of

       the original applicable statute of limitations, whichever occurs later. * * *

       {¶10} The former version of the statute prior to 2004 differed from the current

statute in two important ways. First, it began with the phrase “in an action.” Second, it

included the requirement that the “time limited for the commencement of such action at

the date of the reversal or failure has expired * * *.” Thus, prior to 2004, the language of

the statute provided the savings statute could only be applied if a claim failed after the

statute of limitations had expired.

       {¶11} Examining the plain language of current R.C. 2305.19, it is apparent the

language limiting the application of the savings statute to situations in which the

limitations period had already lapsed at the time of the first failure is absent and the

savings statute instead applies to “any action” that is dismissed otherwise than on the

merits. Under the current version of the statute, a claim may be re-filed using the

savings statute on the latter of the following timeframes: (1) within one year from the
Stark County, Case No. 2012-CA-00154                                                       5


date of reversal or failure other than on the merits or (2) within the period of the original

applicable statute of limitations.

        {¶12} Appellant cites Tripplett v. Beachwood Village in support of her argument

that the savings statute is not implicated when a second complaint is filed within the

statute of limitations period. 158 Ohio App.3d 465, 2004-Ohio-4905, 816 N.E.2d 1092

(7th Dist.).   However, we find the Tripplett case distinguishable from the instant case

because Tripplett was decided utilizing the previous version of R.C. 2305.19 and the

holding is specifically based on the language “the time limited for commencement of

such action * * * has expired” to determine the savings statute is not implicated when a

second complaint is filed within the statute of limitations period.       Id. at 469.   The

language relied on by the Tripplett court is not contained in the current version of R.C.

2305.19.

        {¶13} Prior to the 2004 amendment of R.C. 2305.19, the Ohio Supreme Court

held the savings statute could only be used once to re-file a case and could not be used

to keep actions alive indefinitely. Thomas v. Freeman, 79 Ohio St.3d 221, 227, 680

N.E.2d 997 (1997). The rationale behind this limitation on the savings statute is to

obtain finality of decisions and so the purpose of the civil rules to prevent indefinite

filings is not frustrated. Hancock v. Kroger Co., 103 Ohio App. 3d 266, 659 N.E.2d 336

(10th Dist. 1995). After the amendment of R.C. 2305.19, courts analyzing the statute

have continued to hold that the savings statute cannot apply twice to the same case.

Dargent v. Ohio Dept. of Transp., 171 Ohio App.3d 439, 2006-Ohio-6179, 871 N.E.2d

608 (6th Dist.); Eichler v. Metal & Wire Prods. Co., 7th Dist. No. 07 CO 14, 2008-Ohio-

3095.
Stark County, Case No. 2012-CA-00154                                                     6


       {¶14} Appellant filed her original complaint on May 10, 2010. The trial court

dismissed this complaint otherwise than on the merits on May 19, 2010. Based upon

the plain language of R.C. 2305.19, this qualifies as “any action” otherwise than on the

merits and triggered the savings statute, meaning appellant could re-file her claim within

the later of one year from the dismissal otherwise than on the merits (May 19, 2011) or

the end of the limitations period (November 17, 2010). Appellant did re-file her claim on

October 15, 2010. However, she then voluntarily dismissed her claim on March 3,

2011. When appellant filed her complaint on March 1, 2012, she had already used the

savings statute for her October 15, 2010 filing. The limitation on using the savings

statute only once in a case prohibited appellant from using the savings statute to file her

March 1st complaint. Accordingly, the trial court properly determined appellant could

not utilize the savings statute to re-file her complaint on March 1, 2012.

                            Liberal Construction & Legislative Intent

       {¶15} Appellant next argues the trial court failed to liberally construe R.C.

2305.19 and misinterpreted the legislative intent of amended R.C. 2305.19.             We

disagree.

       {¶16} Generally when construing a statute, “a court’s paramount concern is the

legislative intent.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651

N.E.2d 995 (1995). In doing so, the court must first look to the plain language of the

statute itself to determine the legislative intent. Burrows v. Indus. Comm., 78 Ohio St.3d

78, 81, 676 N.E.2d 519 (1997). If language used in a statute is clear and unambiguous,

the statute must be applied as written and it is not appropriate to engage in further

interpretation. Id. “A court should give effect to the words actually employed in a
Stark County, Case No. 2012-CA-00154                                                     7


statute, and should not delete words used, or insert words not used, in the guise of

interpreting the statute.”     State v. Taniguchi, 74 Ohio St.3d 154, 656 N.E.2d 1286

(1995), citing State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995). We find

nothing ambiguous in the terms of R.C. 2305.19. Here, the trial court correctly looked to

the plain language of the current version of R.C. 2305.19 and determined the absence

of the language “and the time limited for the commencement of such action at the date

of reversal or failure has expired” and the addition of the phrase “in any action,” clearly

indicated the savings statute is not limited to circumstances in which the original statute

of limitations has expired. Because the statute is clear and unambiguous, no further

interpretation is necessary.

       {¶17} Appellant is correct that generally the savings statute should be liberally

construed. Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 167 N.E.2d

774, paragraph one of syllabus (1960). However, the trial court did not err in failing to

liberally construe the savings statute in this case. R.C. 2305.19 is not ambiguous and

the plain language is clear that it applies to “any action” where the claim is dismissed

otherwise than on the merits and is not limited only to those circumstances when the

action was dismissed while still within the statutory limitations period.       The plain

language of the statute allows for the possibility that a claim might fail otherwise than

upon the merits and be re-filed before the limitation period elapses.           Thus, the

preference for liberal construction cannot overcome the plain meaning of the statute.

                                      Prospective Application

       {¶18} Appellant finally argues that, even assuming the trial court’s interpretation

of R.C. 2305.19 is correct, it should be applied prospectively. The “general rule is that
Stark County, Case No. 2012-CA-00154                                                         8


an Ohio court decision applies retrospectively unless a party has contract rights or

vested rights under the prior decision.” DiCenzo v. A-Best Products Co., Inc., 120 Ohio

St.3d 149, 156, 2008-Ohio-5327, 897 N.E.2d 132. However, the court has discretion to

apply a decision prospectively after weighing the following considerations:

              “(1) whether the decision establishes a new principle of law that

       was not foreshadowed in prior decisions; (2) whether retroactive

       application of the decision promotes or retards the purpose behind the rule

       defined in the decision; and (3) whether retroactive application of the

       decision causes in inequitable result.”

       {¶19} Id.   Further, prospective application “is justified only under exceptional

circumstances . . .” Id. at 157.

       {¶20} In this case, a weighing of the factors does not support a deviation from

the general rule of retrospective application. The decision does not establish a new

principle of law, as the trial court applied the plain language of the statute that has been

in place since 2004. The trial court’s decision furthers the policy purpose of preventing

indefinite filings and obtaining finality in a civil action. Finally, retrospective application

does not cause an inequitable result, as appellant had the opportunity to file her case

twice and utilized the savings statute to re-file her case in October of 2010. This case

does not constitute an “exceptional circumstance” warranting prospective-only

application of the trial court’s interpretation of R.C. 2305.19 and we default to the

general rule that the trial court’s interpretation be applied retrospectively.

       {¶21} For the foregoing reasons, we find the trial court was correct in

determining the instant matter is barred by the statute of limitations and dismissing the
Stark County, Case No. 2012-CA-00154                                                9


complaint. We further find the trial court’s interpretation of R.C. 2305.19 be applied

retrospectively. Accordingly, appellant’s assignment of error is overruled.

      {¶22} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur




                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. PATRICIA A. DELANEY


                                              _________________________________
                                              HON. CRAIG R. BALDWIN

WSG:clw 0423
[Cite as Wright v. Proctor-Donald, 2013-Ohio-1973.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


JANICE WRIGHT                                         :
                                                      :
                           Plaintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
BEVERLY PROCTOR-DONALD, ESQ.                          :
                                                      :
                                                      :
                        Defendant-Appellee            :       CASE NO. 2012-CA-00154




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN


                                                          _________________________________
                                                          HON. PATRICIA A. DELANEY


                                                          _________________________________
                                                          HON. CRAIG R. BALDWIN
