[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Portee v. Cleveland Clinic Found., Slip Opinion No. 2018-Ohio-3263.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-3263
   PORTEE ET AL., APPELLANTS, v. CLEVELAND CLINIC FOUNDATION ET AL.,
                                      APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Portee v. Cleveland Clinic Found., Slip Opinion No.
                                   2018-Ohio-3263.]
Statutes of limitations—R.C. 2305.19 (saving statute)—If an action is commenced
        in another state in either a state or federal court and fails otherwise than
        upon the merits and the statute of limitations for commencement of the
        action has expired, R.C. 2305.19, Ohio’s saving statute, does not apply to
        permit recommencement of the action in Ohio within one year—Savings
        statute does not apply to action commenced in Ohio that was originally
        commenced in federal court in Indiana—Court of appeals’ judgment
        reversed and trial court’s judgment reinstated.
     (No. 2017-0616—Submitted May 22, 2018—Decided August 16, 2018.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                            No. 104693, 2017-Ohio-1053.
                             SUPREME COURT OF OHIO




                              ____________________
                             SYLLABUS OF THE COURT
If an action is commenced in another state in either a state or federal court and fails
        otherwise than upon the merits, and the statute of limitations for
        commencement of such action has expired, the Ohio savings statute does
        not apply to permit commencement of a new action within one year.
                              ____________________
        O’DONNELL, J.
        {¶ 1} The Cleveland Clinic Foundation, Peter J. Evans, M.D., Ph.D., and
Nathan Everding, M.D., appeal from a judgment of the Eighth District Court of
Appeals that reversed a grant of summary judgment in connection with a medical
malpractice action filed by Pamela and Haskell Portee. The issue presented on this
appeal is whether the Ohio savings statute applies to a federal court action
commenced in another state that fails otherwise than upon the merits, thereby
permitting a new action to be commenced in an Ohio court within one year after
that failure.
        {¶ 2} We conclude that the Ohio savings statute does not apply to a federal
or state court action commenced in another state that fails otherwise than upon the
merits. Thus, the attempted recommencement in an Ohio state court is barred by
the applicable statute of limitations, and therefore we reverse the judgment of the
appellate court.
                          Facts and Procedural History
        {¶ 3} On October 3, 2012, Pamela Portee, an Indiana resident, had elbow
surgery at the Cleveland Clinic. She alleged that the negligent conduct of Dr. Evans
and Dr. Everding resulted in the severance of her ulnar nerve, requiring a second
surgery. On October 2, 2013, she and Haskell Portee filed a medical malpractice
action against the Cleveland Clinic Foundation, Dr. Evans, and Dr. Everding
(collectively, the “Clinic”) in the United States District Court for the Southern




                                          2
                                January Term, 2018




District of Indiana. On July 28, 2014, the federal court dismissed the case for lack
of personal jurisdiction.
       {¶ 4} On July 17, 2015, the Portees filed an identical action against the
Clinic in the Cuyahoga County Common Pleas Court. The Clinic moved for
summary judgment, asserting that the one year statute of limitations in R.C.
2305.113 for medical malpractice actions barred the action and that R.C. 2305.19,
the Ohio savings statute, did not apply to save it because the original action had
been commenced in another state and pursuant to Howard v. Allen, 30 Ohio St.2d
130, 283 N.E.2d 167 (1972), could not be refiled in Ohio because the savings statute
applies only to actions originally commenced in Ohio within the period of the
statute of limitations. The trial court, relying on Howard, concluded that the action
was untimely and granted the motion for summary judgment.
       {¶ 5} The court of appeals reversed the judgment of the trial court and
remanded the case for further proceedings, concluding the savings statute did apply,
explaining that “R.C. 2305.19 permits a plaintiff, ‘[i]n any action that is
commenced,’ to refile his or her case within one year after the action has failed
otherwise than upon the merits, even if the applicable statute of limitations has
expired” and “does not specify in which court an action must be commenced for
the savings statute to apply.” 2017-Ohio-1053, 80 N.E.3d 556, ¶ 7-8. The court
acknowledged Howard held that R.C. 2305.19 “ ‘is not applicable to actions
commenced or attempted to be commenced in foreign states,’ ” id. at ¶ 9, quoting
Howard at 132, but it determined Howard was not dispositive because (1) in that
case, the plaintiff filed the original action in a foreign state court, (2) in Wasyk v.
Trent, 174 Ohio St. 525, 191 N.E.2d 58 (1963), this court held that the savings
statute applied to an action originally commenced in a federal court, and (3)
“Howard does not mention federal courts, nor does it mention, let alone overrule,
Wasyk,” 2017-Ohio-1053, 80 N.E.3d 556, at ¶ 10. The appellate court noted that
Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160




                                          3
                              SUPREME COURT OF OHIO




(2002), “carved out an exception to Howard” with respect to class-action litigation
and “further implied that Howard was not infallible.” 2017-Ohio-1053, 80 N.E.3d
556, at ¶ 12. It also noted that Osborne v. AK Steel/Armco Steel Co., 96 Ohio St.3d
368, 2002-Ohio-4846, 775 N.E.2d 483, applied the savings statute to a claim
originally commenced in federal court. The appellate court concluded that “given
the law and the policy considerations behind a liberal application of the savings
statute,” it applied to save the action filed by the Portees in Ohio. 2017-Ohio-1053,
80 N.E.3d 556, at ¶ 21.
       {¶ 6} The Clinic appealed and presented one proposition of law: “The Ohio
savings statute, R.C. 2305.19, generally does not apply to save actions originally
commenced outside the State of Ohio.”
                              Positions of the Parties
       {¶ 7} The Clinic asserts R.C. 2305.19 generally does not apply to save
actions originally commenced outside of Ohio, and it maintains that in concluding
the statute applied here, the appellate court improperly disregarded Howard.
According to the Clinic, for purposes of applying the savings statute, there is no
reason to distinguish between an action originally commenced in a foreign state
court, as in Howard, and an action originally commenced in a federal court in a
foreign state, as in this case. The Clinic also maintains that Wasyk, Vaccariello,
and Osborne are inapposite.
       {¶ 8} The Portees maintain that R.C. 2305.19 applies to actions originally
commenced in federal court, relying on Wasyk, Vaccariello, and Osborne. They
emphasize that the savings statute is a remedial statute that should be liberally
construed to permit decisions on the merits. In addition, they assert that Howard
and its progeny stand only for the proposition that R.C. 2305.19 does not apply to
actions originally commenced in foreign state courts and has no application to
actions originally commenced in federal courts. They also argue that “the Howard-
contemporary justifications for limitations of any kind have been eroded since that




                                         4
                                  January Term, 2018




case was initially decided” and that the “modern trend” is “toward * * * foreign
state claimants being permitted to refile under a host state’s savings statute.”
                                         Issue
       {¶ 9} The issue here is whether a party who commences a federal court
action in a foreign state that fails otherwise than upon the merits may recommence
that action in an Ohio court after the applicable statute of limitations has expired by
using the Ohio savings statute.
                                  Law and Analysis
       {¶ 10} In 1953, the General Assembly recodified Section 11233 of the
General Code as R.C. 2305.19, which at that time stated:


               In an action commenced, or attempted to be commenced,
       * * * if the plaintiff fails otherwise than upon the merits, and the
       time limited for the commencement of such action at the date of
       * * * failure has expired, the plaintiff * * * may commence a new
       action within one year after such date.


See Am.H.B. No. 1, 125 Ohio Laws 7.
       {¶ 11} In Howard, we considered whether R.C. 2305.19 saved an action
originally commenced in a common pleas court in South Carolina and unanimously
held the statute “is not applicable to actions commenced or attempted to be
commenced in foreign states.” (Emphasis added.) 30 Ohio St.2d at 132, 283
N.E.2d 169. Rather, the statute “applies only to actions ‘commenced or attempted
to be commenced’ in Ohio within the appropriate statute of limitations.” Id. at
syllabus, quoting R.C. 2305.19. We noted this conclusion was consistent with the
majority rule at that time and stated:




                                           5
                             SUPREME COURT OF OHIO




               The following will illustrate the logic of the majority rule:
       Given: 1. The Ohio saving clause cannot save an action from the
       running of the statute of limitation unless the original action was
       commenced or attempted to be commenced within the applicable
       period of limitation (R.C. 2305.19). 2. The commencement of an
       action in one state does not toll the running of limitations against an
       action for the same cause of action and between the same parties in
       another state. Conclusion: Although plaintiff’s original action was
       filed in the foreign jurisdiction within two years after it accrued, the
       action was not commenced within the Ohio period of limitation, and
       plaintiff cannot for that reason avail herself of R.C. 2305.19.
               The applicable statute of limitation is that of Ohio. If the
       action is barred by the Ohio statute of limitation, no action can be
       maintained in this state, even though the action is not barred
       elsewhere. Suit must be brought in Ohio before the Ohio statute has
       run. A suit in another state can no more toll the Ohio statute,
       applicable to suits in Ohio, than an unexpired claim under the statute
       of another state can operate to lift the statute of limitation and
       thereby make the saving clause available.


(Italics sic and citation omitted.) Id. at 133-134.
       {¶ 12} Additionally, we noted:


               An examination of the Ohio Rules of Civil Procedure does
       not reveal an intent that an action filed in a foreign state be
       considered “commencement” or “attempted commencement” for
       purposes of applying Ohio procedural law. Civ.R. 3(A) defines
       “commencement” in Ohio as “(1) filing a complaint with the court




                                          6
                                January Term, 2018




       and (2) obtaining service within one year from the filing.” It is
       apparent that the word “court,” as used in Civ.R. 3(A) refers to an
       Ohio court, since Rule 1(A) provides that the Ohio Rules of Civil
       Procedure be limited to “courts of this state.” Accordingly, the
       phrase “commenced or attempted to be commenced” contained in
       R.C. 2305.19 must be limited to actions before the courts of this
       state, absent an express provision to the contrary.


(Second emphasis added.) Id. at 135.
       {¶ 13} The General Assembly has amended the savings statute twice since
Howard but never abrogated our decision. In 2004, it amended the statute to state:


               (A) In 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 date of * * * the plaintiff’s failure otherwise than upon
       the merits or within the period of the original applicable statute of
       limitations, whichever occurs later.


Am.Sub.H.B. No. 161, 150 Ohio Laws, Part III, 3423, 3423-3424. The amended
statute contains no language demonstrating a legislative intent to expand the
application of R.C. 2305.19 to actions originally commenced outside of Ohio, and
notably, the title of House Bill 161 reflects that the General Assembly’s intent was
“to modify the period within which a plaintiff may commence a new action after
the reversal of a judgment for the plaintiff or the plaintiff’s failure otherwise than
upon the merits.” Id. at 3423. And when the General Assembly later amended the
statute a second time, effective in 2010, it made no changes to R.C. 2305.19(A).
2009 Sub.S.B. No. 106.




                                          7
                              SUPREME COURT OF OHIO




        {¶ 14} Although Howard involved an action originally commenced in a
foreign state court and this case involves an action originally commenced in a
federal court in a foreign state, that is a distinction without a difference for purposes
of the savings statute, which contains no express exception for such circumstances.
        {¶ 15} Thus, the Ohio savings statute generally does not apply to permit
recommencement of an action in Ohio after the statute of limitations has expired if
the plaintiff commenced the action in another state and failed otherwise than upon
the merits, and the appellate court erred in concluding otherwise.
                          Wasyk, Vaccariello, and Osborne
        {¶ 16} The reliance of the appellate court and the Portees on Wasyk,
Vaccariello, and Osborne is misplaced.
                                        Wasyk
        {¶ 17} Edmund Wasyk filed an action in the United States District Court
for the Southern District of Ohio, Western Division, against Arvel Trent for
damages arising out of an automobile collision based on diversity of citizenship.
Wasyk, 174 Ohio St. at 525, 191 N.E.2d 58. Trent moved to dismiss for lack of
jurisdiction, and after a hearing, the federal court granted the motion, concluding
that both parties were Ohio residents at the time Wasyk commenced the action. Id.
at 525-526. Wasyk then refiled the action against Trent in a common pleas court
in Ohio after the statute of limitations expired. Id. at 526. The trial court concluded
the action was time barred and granted Trent’s motion for summary judgment, and
on appeal, the appellate court affirmed. Id. We reversed, holding:


                Where a plaintiff institutes a civil action in a federal court
        and defendant appears generally by counsel and files a motion to
        dismiss on the ground that there is no diversity of citizenship, and
        that court, after a hearing, dismisses the action on that ground, the
        action is commenced and its dismissal is a failure of the action




                                           8
                                 January Term, 2018




        otherwise than upon the merits, and such plaintiff can bring a new
        action in a court of this state under the provisions of Section
        2305.19, Revised Code.


Id. at syllabus.
        {¶ 18} Wasyk is not controlling in this case because it predated Howard and
because the parties did not specifically dispute whether the savings statute could
apply to an action originally commenced in a federal court. The dispute in Wasyk
centered on Trent’s contention that the lack of subject matter jurisdiction in the
federal court rendered those proceedings “a nullity” such that the savings statute
did not apply. Id. at 527.
                                      Vaccariello
        {¶ 19} Mary Vaccariello filed suit against Smith & Nephew Richards, Inc.
et al. claiming failure to warn of risks associated with a medical device.
Vaccariello, 94 Ohio St.3d at 380-381, 763 N.E.2d 160. Smith moved for summary
judgment, asserting the action was untimely, but the trial court denied that motion
and concluded the statute of limitations was tolled during the pendency of a motion
for class-action certification in a putative class action in a Pennsylvania federal
court where Smith was a defendant and Vaccariello was a potential class member.
Id. at 381. The appellate court reversed the denial of Smith’s motion. Id.
        {¶ 20} On appeal to this court, we affirmed that ruling, holding that the
“filing of a class action, whether in Ohio or the federal court system, tolls the statute
of limitations as to all asserted members of the class who would have been parties
had the suit been permitted to continue as a class action,” id. at syllabus, and we
“modif[ied] Howard to the extent that it conflicts with this holding,” id. at 383 (lead
opinion). The lead opinion observed:




                                           9
                              SUPREME COURT OF OHIO




        This court has not had occasion to revisit, or even cite, Howard in
        the intervening thirty or so years.
                Much has changed since Howard was decided.                 Most
        notably, in American Pipe, the United States Supreme Court found
        that “the commencement of a class action suspends the applicable
        statute of limitations as to all asserted members of the class who
        would have been parties had the suit been permitted to continue as
        a class action.” Since then, “the majority of states which have
        considered the tolling doctrine [of American Pipe and its progeny]
        have accepted it.”


(Citations omitted.) Id. at 381-382.
        {¶ 21} And we explained that our holding


        merely allows a plaintiff who could have filed suit in Ohio
        irrespective of the class action filed in federal court in Pennsylvania
        to rely on that class action to protect her rights in Ohio. To do
        otherwise would encourage all potential plaintiffs in Ohio who
        might be part of a class that is seeking certification in a federal class
        action to file suit individually in Ohio courts to preserve their Ohio
        claims should the class certification be denied.         The resulting
        multiplicity of filings would defeat the purpose of class actions.


Id. at 383.
        {¶ 22} Thus, Vaccariello is distinguishable on its facts in that it modified
Howard solely in the context of class-action litigation, and the policy reason for
that modification is not implicated in this case.




                                           10
                                  January Term, 2018




                                        Osborne
          {¶ 23} Suzanne Osborne filed a claim for age discrimination in violation of
R.C. Chapter 4112 against AK Steel/Armco Steel Company in a United States
District Court, which dismissed that claim without prejudice. Osborne, 96 Ohio
St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, at ¶ 1. She refiled her claim in an
Ohio common pleas court in reliance on the savings statute, but the common pleas
court dismissed that action and the appellate court affirmed. Id. We reversed and
rejected AK Steel’s claim that R.C. 2305.19 does not apply to age discrimination
claims filed pursuant to R.C. Chapter 4112. Id. at ¶ 3-5.
          {¶ 24} Osborne is not controlling here because the singular issue in that
case was whether the statute of limitations in R.C. Chapter 4112 precluded
application of the savings statute.
                                      Conclusion
          {¶ 25} If an action is commenced in another state in either a state or federal
court and fails otherwise than upon the merits, and the statute of limitations for
commencement of such action has expired, the Ohio savings statute does not apply
to permit commencement of a new action within one year. Because the Portees
originally commenced their medical malpractice action in a federal court in Indiana,
the savings statute does not apply to this action, filed in Ohio after the expiration
of the statute of limitations. Accordingly, we reverse the judgment of the court of
appeals and reinstate the judgment of the trial court.
                                                                   Judgment reversed.
          O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and CUNNINGHAM, JJ.,
concur.
          KENNEDY, J., dissents, with an opinion.
          PENELOPE R. CUNNINGHAM, J., of the First District Court of Appeals, sitting
for DEGENARO, J.
                                  _________________




                                           11
                             SUPREME COURT OF OHIO




       KENNEDY, J., dissenting.
       {¶ 26} In Howard v. Allen, we construed a prior version of Ohio’s saving
statute, R.C. 2305.19, and held that it did not apply to actions initially commenced
or attempted to be commenced in other states. 30 Ohio St.2d 130, 132, 283 N.E.2d
167 (1972). Today, almost a half-century later, we are asked to decide whether this
construction of the saving statute still controls, given that the holding in Howard
has been modified by a subsequent decision of this court, that the statute has been
amended to encompass “any action,” and that the reasoning and policy concerns on
which the holding in Howard is grounded have been eroded by the General
Assembly’s enactment of R.C. 2305.03(B), the borrowing statute. In light of these
developments, the meaning of R.C. 2305.19 warrants a fresh review, and because
the plain language of the saving statute applies to “any action that is commenced or
attempted to be commenced,” it applies to an action commenced or attempted to be
commenced in another state, whether in state or federal court. For these reasons, I
would affirm the judgment of the court of appeals.
                         The Flawed Analysis of Howard
       {¶ 27} In Howard, we examined former R.C. 2305.19, which at that time
provided: “In an action commenced, or attempted to be commenced, * * * if the
plaintiff fails otherwise than upon the merits, and the time limited for the
commencement of such action at the date of * * * failure has expired, the plaintiff
* * * may commence a new action within one year after such date.” (Emphasis
added.) See Am.H.B. No. 1, 125 Ohio Laws 7. We construed this language as
permitting refiling only when the dismissed action had been commenced or
attempted to be commenced in Ohio within the applicable limitations period.
Howard’s reasoning, however, no longer withstands scrutiny.
       {¶ 28} In Howard, we concluded that the Ohio statute of limitations applied
to all actions filed in this state and that “[t]he commencement of an action in one
state does not toll the running of limitations against an action [in Ohio] for the same




                                          12
                                 January Term, 2018




cause of action and between the same parties in another state.” Id. at 134. However,
whether an action brought in another state tolls the Ohio limitations period is
irrelevant, because the saving statute applies only if the limitations period has
expired. To “toll” means to stop the running of a time period, Black’s Law
Dictionary 1716 (10th Ed.2014), so that when a limitations period has been tolled,
it has not yet expired. “R.C. 2305.19 has no application unless an action is timely
commenced and is then dismissed without prejudice after the applicable statute of
limitations has run.” Lewis v. Connor, 21 Ohio St.3d 1, 4, 487 N.E.2d 285 (1985).
       {¶ 29} Further, it is no longer true that Ohio’s statute of limitations applies
to all actions brought in this state. Effective in 2005, the General Assembly enacted
the borrowing statute, R.C. 2305.03(B), which provides:


               No civil action that is based upon a cause of action that
       accrued in any other state, territory, district, or foreign jurisdiction
       may be commenced and maintained in this state if the period of
       limitation that applies to that action under the laws of that other state,
       territory, district, or foreign jurisdiction has expired or the period of
       limitation that applies to that action under the laws of this state has
       expired.


Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915, 7930-7931. The borrowing
statute is “a legislative exception to the general rule that a forum state always
applies its own statute-of-limitations law,” Taylor v. First Resolution Invest. Corp.,
148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, ¶ 37, and Ohio courts will
now apply another state’s limitations period if it is shorter than this state’s, R.C.
2305.03(B). Therefore, any policy concerns about forum shopping for a longer
limitations period have been alleviated and are no longer a basis for declining to
apply the saving statute to actions initially brought in another state.




                                          13
                             SUPREME COURT OF OHIO




       {¶ 30} The court in Howard relied on Civ.R. 3(A) to conclude that for
purposes of the saving statute, “commencement” means filing a complaint with the
court and obtaining service within one year of filing. Because the Ohio Rules of
Civil Procedure apply only to the “courts of this state,” the court reasoned, “the
phrase ‘commenced or attempted to be commenced’ contained in R.C. 2305.19
must be limited to actions before the courts of this state, absent an express provision
to the contrary.” Howard, 30 Ohio St.2d at 135, 283 N.E.2d 167. The flaw in that
reasoning, however, is that at the time the General Assembly enacted the saving
statute as part of the General Code, the Ohio Rules of Civil Procedure did not exist;
therefore, the legislature could not have intended to incorporate Civ.R. 3(A) when
enacting the saving statute. Moreover, our authority to promulgate procedural rules
would not permit us to interpret Civ.R. 3(A) as limiting the scope of the saving
statute. “[I]f a rule created pursuant to Section 5(B), Article IV [of the Ohio
Constitution] conflicts with a statute, the rule will control for procedural matters,
and the statute will control for matters of substantive law.”              Proctor v.
Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 17. And
“[t]he existence and duration of a statute of limitations for a cause of action
constitutes an issue of public policy for resolution by the legislative branch of
government as a matter of substantive law.” Erwin v. Bryan, 125 Ohio St.3d 519,
2010-Ohio-2202, 929 N.E.2d 1019, ¶ 29.
       {¶ 31} And had the court applied our rules of statutory construction in
Howard, its analysis would have begun with determining and giving effect to the
intent of the General Assembly as expressed in the language it enacted. See Griffith
v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18;
Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20.
R.C. 1.42 provided then, and continues to provide now, that “[w]ords and phrases
shall be read in context and construed according to the rules of grammar and
common usage.”




                                          14
                                January Term, 2018




       {¶ 32} Former R.C. 2305.19 applied to “an action.” “An” is a function word
used when the noun it proceeds is “undetermined, unidentified, or unspecified,” and
it can mean “each.” Webster’s Third New International Dictionary 1, 75 (2002).
The phrase “an action” is not limited to any specific actions or to those filed in this
state’s courts. Therefore, in order to reach its conclusion in Howard, the court had
to add words to the statute to limit its scope to an “action commenced or attempted
to be commenced in Ohio” (emphasis added), Howard at 135.
       {¶ 33} For these reasons, it is my view that Howard was wrongly decided.
            Amendments to R.C. 2305.19 Have Not Codified Howard
       {¶ 34} The majority justifies its continued adherence to Howard based on
the facts that the General Assembly has subsequently amended the saving statute
twice and “[t]he amended statute contains no language demonstrating a legislative
intent to expand the application of R.C. 2305.19 to actions originally commenced
outside of Ohio.” Majority opinion at ¶ 13.
       {¶ 35} I recognize that generally “[i]t is presumed that the General
Assembly is fully aware of any prior judicial interpretation of an existing statute
when enacting an amendment.” Riffle v. Physicians & Surgeons Ambulance Serv.,
Inc., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 19, quoting Clark v.
Scarpelli, 91 Ohio St.3d 271, 278, 744 N.E.2d 719 (2001). And we have observed
that “ ‘ “the General Assembly has shown no hesitation in acting promptly when it
disagrees   with    appellate   rulings   involving    statutory   construction    and
interpretation.” ’ ” Id., quoting In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-
5696, 983 N.E.2d 350, ¶ 11, quoting State v. Ferguson, 120 Ohio St.3d 7, 2008-
Ohio-4824, 896 N.E.2d 110, ¶ 23.
       {¶ 36} But there are two problems with presuming that the General
Assembly intended to codify Howard’s holding when amending R.C. 2305.19.
First, by the time the General Assembly amended the saving statute, we had decided
Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160




                                          15
                              SUPREME COURT OF OHIO




(2002). In that case, a majority of the court agreed that the saving statute applied
to a class action that had been initially filed in a federal court in another state, so
that a member of the class had one year from the denial of class certification in the
federal court to refile the action in Ohio. Id. at 382-383 (lead opinion); id. at 390
(Douglas, J., concurring in part and dissenting in part). Importantly, the majority
modified Howard “to the extent that it conflicts with this holding.” Id. at 383 (lead
opinion); id. at 390 (Douglas, J., concurring in part and dissenting in part). Because
the court modified Howard’s holding so that the saving statute applies to at least
some actions initially brought outside Ohio, it is not possible to presume, as the
majority does, that the General Assembly intended to codify Howard’s unmodified
holding when it amended the statute.
       {¶ 37} Second, the amended statute does contain language indicating that
the General Assembly intended the saving statute to apply to actions initially filed
in a court outside Ohio. In 2004, the General Assembly enacted the current version
of R.C. 2305.19(A):


               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.            This
       division applies to any claim asserted in any pleading by a
       defendant.




                                           16
                                 January Term, 2018




(Emphasis added.) Am.Sub.H.B. No. 161, 150 Ohio Laws, Part III, 3423, 3423-
3424 (“H.B. 161”).
          {¶ 38} The legislature changed “an action” to “any action.” R.C. 1.47(B)
provides that “[i]n enacting a statute, it is presumed that * * * [t]he entire statute is
intended to be effective.” Further, R.C. 1.54 states, “A statute which is reenacted
or amended is intended to be a continuation of the prior statute and not a new
enactment, so far as it is the same as the prior statute.” (Emphasis added.) We are
therefore obliged to presume that the General Assembly intended its substitution of
the word “any” for the word “an” to mean something, because in construing a
statute, “ ‘significance and effect should be accorded to every word, phrase,
sentence and part thereof, if possible.’ ” State ex rel. Nation Bldg. Technical
Academy v. Ohio Dept. of Edn., 123 Ohio St.3d 35, 2009-Ohio-4084, 913 N.E.2d
977, ¶ 18, quoting State v. Wilson, 77 Ohio St.3d 334, 336-337, 673 N.E.2d 1347
(1997).
          {¶ 39} Moreover, the General Assembly amended R.C. 2305.19 as part of
remedial legislation that broadened the scope of the statute. H.B. 161 eliminated
the “malpractice trap,” in which a plaintiff whose case had been dismissed without
prejudice before the original limitations period had run was required to refile the
action within that period, regardless of how little time was left. Eppley v. Tri-Valley
Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d
401, ¶ 8-9. The amended statute permits filing within the limitations period or
within one year from dismissal, whichever period is longer. Id. at ¶ 9.
          {¶ 40} It is true that stare decisis is most compelling when precedent
involves statutory construction, Rocky River v. State Emp. Relations Bd., 43 Ohio
St.3d 1, 6, 539 N.E.2d 103 (1989), but the amendment of a previously construed
statute can make it “sufficiently different from the previous enactments to avoid the
blanket application of stare decisis” and “warrant a fresh review,” Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 24.




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                              SUPREME COURT OF OHIO




       {¶ 41} Any judicial presumption that the legislature intended to codify the
outdated holding in Howard cannot outweigh the plain meaning of the current
version of the statute. Therefore, I would determine and give effect to the intent of
the General Assembly as expressed in the language it enacted in amending R.C.
2305.19.
                         “Any Action” Means Any Action
       {¶ 42} The saving statute applies to “any action.” This court has noted that
“ ‘ “[a]ny” means “one or some indiscriminately of whatever kind.” ’ ” Weiss v.
Pub. Util. Comm., 90 Ohio St.3d 15, 17, 734 N.E.2d 775 (2000), quoting State ex
rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 340, 673 N.E.2d
1351 (1997), quoting Webster’s Third New International Dictionary 97 (1971).
The word “any” is “inclusive,” The Way Internatl. v. Limbach, 50 Ohio St.3d 76,
80, 552 N.E.2d 908 (1990), and “is often used as meaning ‘all,’ ” Wachendorf v.
Shaver, 149 Ohio St. 231, 240, 78 N.E.2d 370 (1948), or “every,” State v. Wells,
146 Ohio St. 131, 137, 64 N.E.2d 593 (1945). Because any action includes all
actions and every action, it necessarily applies to actions commenced in other states,
whether in state or federal court. We would have to add language to the saving
statute to limit it to “any action that is commenced, or attempted to be commenced,”
in Ohio, R.C. 2305.19(A). However, a court cannot insert language into a statute
under the guise of statutory interpretation. Doe v. Marlington Local School Dist.
Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29. Instead,
when the language of a statute is plain and unambiguous and conveys a clear and
definite meaning, our role is to apply it as written. Pelletier v. Campbell, ___ Ohio
St.3d ___, 2018-Ohio-2121, ___ N.E.3d ___, ¶ 14.
       {¶ 43} This conclusion accords with recent decisions in other jurisdictions
holding that saving statutes that use the phrase “any action” apply to actions initially
brought in another state. E.g., Seaboard Corp. v. Marsh Inc., 295 Kan. 384, 405,
284 P.3d 314 (2012) (“grafting restrictions on the words ‘any action’ or




                                          18
                                 January Term, 2018




‘commenced,’ as would be required if we were to hold that the Kansas saving
statute applies only to actions originally filed in a Kansas state court, is contrary to
our long-established rules of statutory construction”); Reid v. Spazio, 970 A.2d 176
(Del.2009) (an action initially filed in Texas could be refiled in Delaware under
Delaware’s saving statute).
        {¶ 44} Because Ohio’s saving statute uses the phrase “any action,” it applies
to a lawsuit initially commenced in federal court in Indiana. Accordingly, I would
affirm the judgment of the court of appeals.
                                _________________
        Reminger Co., L.P.A., Brian D. Sullivan, Clifford C. Masch, and Ronald A.
Mingus, for appellants.
        Schiller Law Offices, L.L.C., and Matthew Schiller; Patton Law Firm,
L.L.C., and David V. Patton; and Donald Kotnik, for appellees.
        Richard M. Markus, urging affirmance for amicus curiae Ohio Association
for Justice.
                                _________________




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