COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68311 : ACCELERATED DOCKET KATHLEEN ONDERDONK, EXECUTRIX : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION LAKELAND EMERGENCY ASSOC., ET AL. : : : PER CURIAM Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-272539 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: WILLIAM WESTON, ESQ. STEVEN J. HUPP, ESQ. TIMOTHY L. McGARRY, ESQ. Jacobson, Maynard, Tuschman 1460 Rockefeller Road & Kalur Wickliffe, Ohio 44092 1001 Lakeside Avenue Suite 1600 Cleveland, Ohio 44114-1192 - 2 - PER CURIAM: Plaintiff-appellant, Kathleen Onderdonk, (hereinafter "plaintiff") appeals from the trial court's granting of summary judgment for defendant-appellee, Lakeland Emergency Associates, Inc. (hereinafter "defendant"). Plaintiff filed her complaint against defendant on May 15, 1992, for wrongful death and medical malpractice. The complaint alleged that the defendant's negligence caused the death of the decedent, Helen Tecevec. On June 11, 1993, after discovery had been completed and ten days prior to trial, plaintiff filed a Notice of Voluntary Dismissal. The trial court then, on June 22, 1993, filed a half-sheet journal entry dismissing plaintiff's case without prejudice. Thereafter, plaintiff refiled her complaint on June 17, 1994. Defendant answered on July 15, 1994, and on July 24, 1994, defendant moved for summary judgment contending that 1/ plaintiff did not refile her case within the one-year savings statute. The trial court granted defendant's motion for summary judgment. Plaintiff appealed to this court raising two assignments of error. Plaintiff's first assignment of error states as follows: THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO APPELLEE AS APPELLANT'S COMPLAINT WAS RE-FILED WITHIN ONE YEAR AFTER BEING VOLUNTARILY DISMISSED. Civ.R. 41(A)(1), which governs voluntary dismissals, states as 1/ Although the section heading of R.C. 2305.19 employs the uninflected form of "saving," this court will follow the common practice and use "savings." - 3 - follows: DISMISSAL OF ACTIONS (A) Voluntary Dismissal; Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudications by the court has been served by the defendant ***. (Emphasis added.) Civ.R. 41 unequivocally states that an action may be dismissed by the plaintiff without order of court. The rule requires only that a notice of dismissal be filed. The filing of the notice of dismissal automatically terminates the case without any intervention by the court. Hershbain v. City of Cleveland (June 4, 1992), Cuyahoga App. Nos. 60631, 61121, unreported; Perdue v. Handelman (1980), 68 Ohio App.2d 240; Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224. A voluntary dismissal is a failure of the action otherwise than upon the merits within the meaning of R.C. 2305.19. Frysinger v. Leech (1987), 32 Ohio St.3d 38. Thus the case at bar may be recommenced under the savings statute, R.C. 2305.19, which provides, in pertinent part, as follows: In an action 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, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date. (Emphasis added.) This statute permits plaintiff one year in which to refile their complaint. The time begins to run on the date plaintiff - 4 - filed their notice of voluntary dismissal. Hershbain v. City of Cleveland (June 4, 1992), Cuyahoga App. Nos. 60631, 61121, unreported; and Gardner v. Gleydura (1994), 98 Ohio App.3d 277. In Gardner, this court clearly explained its reasoning, at 279: In accordance with the foregoing, we hold that plaintiffs' original action against defendants failed otherwise than upon the merits on January 3, 1992, the date on which plaintiffs filed their voluntary dismissal of the action. Upon the filing of this document, no further action was required by the trial court. Accordingly the trial court's half sheet judgment entry in this matter merely reiterated that the matter had been voluntarily dismissed and did not effectively terminate the original action. Plaintiffs were therefore required to refile the instant action within one year of the date on which they voluntarily dismissed their original action against defendants, and plaintiffs could not wait until one year of the date on which the court's half-sheet entry was journalized. Accord Hershbain v. Cleveland (June 4, 1992), Cuyahoga App. Nos. 60631 and 61121, unreported, 1992 WL 126017, wherein this court stated: "* * * plaintiff's notice of dismissal became effective on June 9, 1989, the date he filed it, since the rule is self-executing. Thus, plaintiff must indeed be held responsible for being aware that according to the Rule of Civil Procedure under which he was proceeding, his original action was dismissed as of the date he filed his notice thereof. The trial court's half-sheet journal entry is merely a perfunctory act performed without discretion, constituting notice to the world of plaintiff's unilateral action." In the instant case, plaintiff recommenced the case within a year of the half-sheet journal entry dismissing her case but not within a year after the filing of the notice of voluntary dismissal. This precise issue having already been resolved in Gardner, we hold as follows: 1) plaintiff's notice of dismissal was effective upon its date of filing, June 11, 1993, 2) plaintiff had one year from June 11, 1993 in which to refile the action under the savings statute, 3) plaintiff's refiling of the case on July 15, - 5 - 1994, was untimely as it was not filed within a year of the filing of the notice of dismissal, and 4) the trial court properly dismissed the action for not being timely recommenced within the savings statute. This assignment of error is overruled. Plaintiff's second assignment of error states as follows: THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO APPELLEE AS THE STATUTE OF LIMITATIONS WAS EXTENDED BY ONE HUNDRED AND EIGHTY DAYS BY APPELLANT'S WRITTEN NOTICE TO APPELLEE. The plaintiff argues in this assignment of error that the 180- day extension provided in R.C. 2305.11(B)(1) should apply to the savings statute, R.C. 2305.19. This argument is not well taken. Revised Code 2305.11 provides as follows: (B)(1) Subject to division (B)(2) of this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the action accrued, except that, if prior to the expiration of that one-year period, a claimant who allegedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given. (Emphasis added.) The savings statute contemplates a recommencement whereas the extension provided in 2305.11 applies to the initial commencement of an action. This extension is designed to give plaintiffs the opportunity to consider fully a potential medical malpractice claim before they first file an action. On this point, the Supreme Court has stated, "The purpose of this statute is to decrease the likelihood of frivolous medical malpractice claims by allowing parties and their attorneys additional time to investigate a - 6 - potential claim which is brought to their attention shortly before the one-year statute of limitations expires." (Citations omitted.) Edens v. Barberton Area Family Practice Ctr. (1989), 43 Ohio St.3d 176, 178. In this case, plaintiff had over one year to conduct discovery before she dismissed the action ten days prior to trial. By virtue of the savings statute, she then had an additional year for investigation. There being no precedent to apply the R.C. 2305.11 extension to the savings statute or policy reason to allow an additional 180 days, we find this assignment of error to be without merit. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant their 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 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. JOHN T. PATTON, CHIEF JUSTICE PATRICIA ANN BLACKMON, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journal- .