[Cite as Vaught v. Pollack, 2016-Ohio-4963.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103819



               ALBERTA CAROLINE VAUGHT, ET AL.
                                                      PLAINTIFFS-APPELLANTS

                                                vs.

                    MICHAEL POLLACK, M.D., ET AL.
                                                      DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-848306

             BEFORE:          Blackmon, J., Boyle, P.J., and Laster Mays, J.

             RELEASED AND JOURNALIZED:                      July 14, 2016
ATTORNEYS FOR APPELLANTS

For Alberta Vaught

Jeffrey R. Wahl
Jeffrey R. Wahl Co., L.P.A.
30799 Pinetree Rd., #241
Cleveland, Ohio 44124

For Lawrence Vaught

Eric H. Zagrans
Zagrans Law Firm, L.L.C.
6100 Oak Tree Boulevard
Suite 200
Cleveland, Ohio 44131


ATTORNEYS FOR APPELLEES

Thomas B. Kilbane
Martin T. Galvin
Reminger & Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Ave. West
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, J.:

       {¶1} Alberta Caroline Vaught (“Vaught”) and her husband (collectively

“Plaintiffs”) appeal from the trial court’s granting summary judgment to Dr. Michael

Pollack (“Dr. Pollack”) and Consultants in Gastroenterology, Inc., (collectively

“Defendants”) in this medical malpractice case. Plaintiffs assign the following error for

our review:

       I. The trial court committed reversible error as a matter of law by granting
       summary judgment in favor of Dr. Pollack on the basis of the statute of
       limitations and the statute of repose.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} On February 2, 2009, Dr. Pollack performed a medical procedure called an

endoscopic retrograde cholangiopancreatography (“ERCP”) on Vaught. Complications

allegedly arose, and Plaintiffs filed a medical malpractice case against Defendants on

August 17, 2010. On November 19, 2013, the trial court dismissed the case without

prejudice under Civ.R. 41(B) for failure to prosecute. According to Plaintiffs’ counsel, a

trial court employee indicated via email that this dismissal was in error, and the court

would “reinstate the case as soon as possible.”

       {¶4} As of April 3, 2014, the case had not been reinstated, and Plaintiffs filed a

second complaint against Defendants.     The parties agree that this refiled complaint was

timely under R.C. 2305.19, which is commonly known as the “savings statute.” On July

16, 2014, the court dismissed the case “for failure to appear at a pretrial conference,”
pursuant to Loc.R. 21 Part III(H)(1) of the Court of Common Pleas of Cuyahoga County,

General Division, which authorizes the trial court to “dismiss an action without prejudice

for want of prosecution * * *.”

       {¶5} On July 15, 2015, Plaintiffs filed a third complaint against Defendants. On

October 29, 2015, the trial court granted Defendants’ summary judgment motion, finding

the following in pertinent part:

       Ohio case law prohibits use of the savings statute a second time and

       therefore, * * * the complaint in the present action was filed outside the

       statute of limitations * * *.      [Plaintiffs’ attempt] to show the court

       incorrectly dismissed [the] complaint * * * in 2013. The legal analysis

       under the statute of limitations does not include whether a case was or was

       not properly dismissed. [Plaintiffs’] required course in the face of incorrect

       court action dismissing the first complaint * * * in 2013 was to file a Civ.R.

       60(B) motion in the trial court or appeal the judgment to reverse the

       dismissal. * * * Under the Ohio Rules of Civil Procedure, court action is

       prompted by motions not by phone calls or emails. Had the evidence

       [Plaintiffs bring] forth now in order to defeat * * * summary judgment * * *

       been properly presented to the court by motion in a timely fashion * * *,

       perhaps the trial court would have vacated the dismissal under Civ.R.

       60(B). * * * The same analysis applies to [Plaintiffs’] argument that the

       court incorrectly dismissed the second complaint in July 2014. * * * Based
       on the undisputed evidence the trier of fact can come to but one conclusion

       and that conclusion is that [Plaintiffs’] third complaint in this action was

       filed after the expiration of the statute of limitations [and] outside the

       statute of [repose] under R.C. 2305.113.

       {¶6} It is from this order that Plaintiffs appeal.



                                   Summary Judgment

       {¶7} Appellate review of granting summary judgment is de novo. Pursuant to

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

                   Time Limitations in Medical Malpractice Claims

       {¶8} Pursuant to R.C. 2305.113(A), “an action upon a medical * * * claim shall

be commenced within one year after the cause of action accrued.”         This is a statute of

limitations, which creates “a time limit for suing in a civil case, based on the date when

the claim accrued.” Black’s Law Dictionary 1546 (9th Ed.2009).            Accrual dates are

subject to various conditions; thus, statutes of limitations may be tolled for various

reasons.    See, e.g., Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491,

2006-Ohio-2625, 849 N.E.2d 268 (in certain cases, the statute of limitations does not

begin to run until the plaintiff discovers, or should have discovered, the cause of action).
Statutes of limitations “are intended to put defendant on notice of adverse claims and to

prevent plaintiffs from sleeping on their rights * * *.” Crown v. Parker, 462 U.S. 345,

352, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983).

       {¶9} Pursuant to R.C. 2305.113(C)(1), “[n]o action upon a medical * * * claim

shall be commenced more than four years after the occurrence              of     the   act   or

omission constituting the alleged basis of            the medical * * * claim.” This is a

statute of repose, which “bar[s] any suit that is brought after a specified time since the

defendant acted * * *, even if this period ends before the plaintiff has suffered a resulting

injury.”   Black’s Law Dictionary 1546 (9th Ed.2009).           “Unlike a true statute of

limitations, which limits the time in which a plaintiff may bring suit after the cause of

action accrues, a statute of repose * * * potentially bars     a   plaintiff’s    suit before

the   cause   of   action   arises.”   (Emphasis sic. Overruled on other grounds.) Sedar

v. Knowlton Constr. Co., 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990).

       {¶10} Statutes of repose were first enacted by the legislature in the late 1950s and

early 1960s in response to “architects and builders [who] were increasingly subjected to

suits brought by third parties long after work on a building had been completed.”       Groch

v. GMC, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 337, ¶ 112. Over time, the

legislature enacted statutes of repose in other areas of the law.       In 1987, the Ohio

Supreme Court found that the statute of repose that applied to medical malpractice claims

at the time, former R.C. 2305.11(B), was unconstitutional. Hardy v. Ver Meulen, 32

Ohio St.3d 45,      512 N.E.2d 626 (1987).        “[A] statute such as R.C. 2305.11(B)
unconstitutionally locks the courtroom door before the injured party has had an

opportunity to open it.” Id. at 47.

       {¶11} The legislature enacted another statute of repose that applied to medical

malpractice claims, and in 2012, the Ohio Supreme Court overruled Hardy and found that

R.C. 2305.113(C), which is the current medical malpractice statute of repose, does not

violate the constitution.1 Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983,

N.E.2d 291.

       {¶12} This court has held that “[i]n certain instances, Ohio’s savings statute, R.C.

2305.19, operates to ‘save’ timely filed actions by permitting a party to refile its

complaint or file a new action * * *” within one year of a failure otherwise than   on   the

 merits.       Allegretti    v.       York,   8th    Dist.    Cuyahoga No.          101231,

2014-Ohio-4480, ¶ 15.       When the court dismisses a case under Civ.R. 41(B)(1) for

failure to prosecute and indicates that the dismissal is without prejudice, this is a


       We are cognizant of the Ohio Supreme Court’s September 15, 2015
       1

decision accepting for review Antoon v. Cleveland Clinic Found., 8th Dist.
Cuyahoga No. 101373, 2015-Ohio-421. In Antoon, this court found that when
a medical malpractice claim was filed within the statute of repose, then
voluntarily dismissed without prejudice, “the claim had vested, and the
statute of repose no longer applies. The timeliness of the complaint is now
controlled by the statute of limitations and any tolling provisions.” Id. at ¶
11. The Ohio Supreme Court has agreed to review the following proposition
of law: “Ohio’s medical malpractice statute of repose applies whenever the
occurrence of the act or omission constituting the alleged medical malpractice
takes place more than four years prior to when the lawsuit is filed. This
statute of repose applies regardless of whether a cause of action has vested
prior to the filing of a lawsuit.” Antoon v. Cleveland Clinic Found., 143 Ohio
St.3d 1463, 2015-Ohio-3733, 37 N.E.3d 1249.
dismissal “otherwise than on the merits, [and] the plaintiff may utilize the savings statute

to refile within one year, providing all other procedural requirements of the savings

statute have been met.” Thomas v. Freeman, 79 Ohio St.3d 221, 228, 680 N.E.2d 997

(1997).

       {¶13} A party can use the savings statute to refile a case one time only.   “Indeed,

‘R.C. 2305.19 states that the plaintiff has the right to file a new action, not multiple

actions.’” (Citations omitted.) Hamrick v. Ramalia, 8th Dist. Cuyahoga No. 97385,

2012-Ohio-1953, ¶ 18.      See also Brown v. Solon Pointe at Emerald Ridge, 8th Dist.

Cuyahoga No. 99363, 2013-Ohio-4903, ¶ 24 (summary judgment in favor of defendants

was proper when plaintiff filed her complaint for the third time, because “she had already

utilized the saving statute once and the applicable statutes of limitations for her claims

had already expired.”)

                                          Analysis

       {¶14} In the instant case, Plaintiffs argue that the R.C. 2305.19 savings statute

should not have applied to their “second refiling” because of the court’s “own mistaken

actions and injudicious dismissal rulings * * *.” Specifically, Plaintiffs argue that the

“trial court should have honored the representations made by [the] staff attorney” via

email that the case would be reinstated, and consequently, they were forced to utilize the

savings statute to refile the case on April 3, 2014.

       {¶15} Plaintiffs further argue that the trial court’s dismissal of the second

complaint on July 16, 2014 was “unjust and unreasonable,” because the “trial court knew
the Savings Statute had already been invoked in April 2014 because [Plaintiffs were]

obliged to use up [their] one shot at refiling a case that had been dismissed after the

original statute of limitations had expired * * *.”

       {¶16} Defendants, on the other hand, argue that, regardless of the nature of the

dismissal that prompts the refiling, Ohio’s savings statute may only be utilized once.

Defendants explain that “[t]he logic of permitting a plaintiff to invoke a savings statute

only once prevents a plaintiff from refiling her lawsuit repeatedly, which would

effectively nullify the statute of limitations.”

       {¶17} Defendants further argue that, even if the saving statute did apply to the

third filing, it would relate “back to the filing date for the preceding action for limitations

purposes.”    Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987).

Plaintiffs filed their second complaint on April 3, 2014. Therefore, if Plaintiffs were to

use the savings statute a second time, the third complaint would be “saved” back to April

3, 2014, which is outside the one-year statute of limitations for a medical malpractice

claim that allegedly occurred in February 2009.

       {¶18} Upon review, we find that the holding in Gamble v. Patterson, 155 Ohio

App.3d 320, 2003-Ohio-6276, 801 N.E.2d 465 (7th Dist.) applies to the case at hand. In

Gamble, the trial court granted summary judgment to the defendant after the plaintiff filed

her complaint for the third time, finding that the statute of limitations had expired. The

plaintiff in Gamble argued that the trial court should not have dismissed the second

complaint for lack of timely service when the defendant moved out of state. Id. at ¶
16-17. Similar to Gamble, in the instant case, Plaintiffs’ “argument is based more on a

sense of injustice rather than on any statutes, court rules or case law.” Id. at ¶ 13.

       {¶19} “If the refiled complaint is erroneously dismissed by the trial court, the

plaintiff must successfully challenge that dismissal either through an appropriate post-trial

motion (such as a motion to vacate) or through a direct appeal.” Gamble at ¶ 19.

       {¶20} In the case at hand, Plaintiffs could have appealed the dismissals to the

extent they were final appealable orders. “Ordinarily, a dismissal ‘otherwise than on the

merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal

is not a final, appealable order.”       Natl.’ City Commercial Capital Corp. v. AAAA at

Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 8. However, when a dismissal

precludes a party from refiling its case, “[i]n essence, a final judgment has been rendered

* * * because the cause has been disposed of and there is nothing left for the

determination of the trial court.” Id.

       {¶21} The Ohio Supreme Court has stated that “[a]lthough it is not common for us

to review cases that have been dismissed other than on the merits,         we    have    done

so   when — as     in   this    case — justice   so   requires.” Id. at ¶ 11.    Ohio courts

further explain this concept:

       [G]enerally an involuntary dismissal without prejudice is not a final
       appealable order. * * * Courts hold as such because a dismissal without
       prejudice leaves the parties in the same position they were in prior to the
       action being filed; the action is treated as though it had never been
       commenced. * * * However, in some instances refiling is not an option
       because the statute of limitations has already run and the savings statute,
       R.C. 2305.19, had been previously invoked. In those instances, even a
       dismissal without prejudice may be a final appealable order.
Selmon v. Crestview Nursing & Rehab. Ctr., Inc., 184 Ohio App.3d 317,

2009-Ohio-5078, 920 N.E.2d 1017, ¶ 2 (7th Dist.)

       {¶22} Additionally, Plaintiffs could have filed a motion for relief from judgment

pursuant to Civ.R. 60, which allows the court to grant relief from a final judgment, order,

or proceeding.     Hensley v. Henry, 61 Ohio St.2d 277, 279, 400 N.E.2d 1352 (1980).

See also Andy Estates Dev. Corp. v. Bridal, 68 Ohio App.3d 455, 457, 588 N.E.2d 978

(10th Dist.1991) (holding that, when a case is dismissed, the court’s jurisdiction is

terminated except for the limited purpose of a motion to vacate the dismissal within the

bounds of Civ.R. 60(B)).

       {¶23} Accordingly, we hold that the savings statute does not apply to Plaintiffs’

third complaint, which was filed on July 15, 2015, well beyond the statute of limitations,

as well as the statute of repose, in this case.       Therefore, Defendants are entitled to

judgment as a matter of law, and the court did not err in granting summary judgment.

Plaintiffs’ sole assigned error is overruled, and the decision of the trial court is affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County 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.
PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
