COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68621 LORA IGLODI : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION AGNES MONTZ, M.D. : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION AUGUST 31, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 273211 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEVEN J. HUPP, ESQ. PETER H. WEINBERGER, ESQ. Jacobson, Maynard, Tuschman Spangenberg, Shibley, Traci & Kalur Co., L.P.A. Lancione & Liber 1001 Lakeside Avenue 2400 National City Center Suite 1600 Cleveland, Ohio 44114 Cleveland, Ohio 44114 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiff-appellant Lora Iglodi appeals from summary judgment granted by the trial court on plaintiff's medical malpractice claim against defendant-appellee Agnes Montz, M.D. Plaintiff contends that the one year savings statute (R.C. 2305.19) preserved her right to refile a third suit after two involuntary dismissals of her prior suits. We find the appeal to be without merit and affirm for the reasons stated below. The history leading to summary judgment is not in dispute. On July 30, 1991, plaintiff timely filed her medical malpractice action against defendant in Common Pleas Court. On December 12, 1991, after the one year statute of limitations for malpractice had expired, plaintiff's complaint was involuntarily dismissed without prejudice by the trial court for failure to comply with the affidavit requirement of R.C. 2307.42(C)(2)(a). Plaintiff refiled her complaint on July 9, 1992, within the one year savings statute, R.C. 2305.19. On December 15, 1992, plaintiff's case was again dismissed by the trial court without prejudice for failure to comply with R.C. 2307.42(C)(2)(a). Plaintiff attempted to appeal the second dismissal to this Court. However, plaintiff failed to file a timely notice of appeal and this Court dismissed the appeal on June 9, 1994 for lack of subject matter jurisdiction, Iglodi v. Montz (June 9, 1994), - 3 - Cuyahoga App. No. 64941, unreported. Reconsideration was denied. The dismissal was not appealed. On June 30, 1994, plaintiff refiled this case for a third time. On August 12, 1994, defendant filed a motion for summary judgment on the grounds that the one year statute of limitations on plaintiff's medical malpractice claim had expired and that the savings statute prevented multiple refilings. On February 10, 1995, over plaintiff's opposition, the trial court granted defendant's summary judgment and held: Since the July 2, 1992 [sic] filing was commenced after the expiration of the statute of limitations, the savings statute does not apply to the second dismissal to further extend the time for filing. The third filing, on June 30, 1994 was beyond the expiration of the statute for a medical malpractice claim. Consequently, the within action is untimely. Plaintiff filed a timely notice of appeal to this Court. Her sole assignment of error states as follows: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT SINCE PLAINTIFF'S CLAIM WAS NOT BARRED BY THE STATUTE OF LIMITATIONS AND SINCE PLAINTIFF'S CLAIM WAS TIMELY FILED PURSUANT TO THE SAVINGS STATUTE (I.E., OHIO REV. CODE 2305.19). A. O.R.C. 2305.19 DOES NOT BAR MULTIPLE REFILINGS BY A PLAINTIFF WHERE THE PLAINTIFF'S CASE IS INVOLUNTARILY DISMISSED WITHOUT PREJUDICE. B. UNDER 2305.19 WHERE AN APPELLATE COURT DISMISSES AN APPEAL FOR REASONS OTHERWISE THAN UPON THE MERITS A PLAINTIFF MAY COMMENCE A NEW ACTION WITHIN ONE YEAR OF THE APPELLATE COURT'S DECISION. The critical issue on this appeal is whether the savings statute (R.C. 2305.19) may be used more than once to salvage a case which - 4 - is otherwise barred by the statute of limitations. We hold that it may not and that summary judgment was properly granted for defendant. R.C. 2305.19 provides in pertinent part: 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 *** may commence a new action within one year after such date. The plaintiff in this case has filed this case three times. The third filing of this case is barred because the statute of limitations has expired, and because the savings statute cannot be used more than once, even when the prior cases were involuntarily dismissed without prejudice. Seawright v. Zabell (April 27, 1989), Cuyahoga App. No. 55232, unreported. In Seawright, a dental malpractice claim, the plaintiff attempted to invoke R.C. 2305.19 subsequent to two prior dismissals without prejudice of the same causes of action. This Court affirmed the trial court's ruling that "the statute of limitations, by virtue of R.C. 2305.19, may only be extended for one year after the initially filed action fails otherwise than upon the merits." Seawright at 3. This Court further held: On the dismissal of the second suit for want of service, the plaintiff was outside the statute of limitations. The savings statute was no longer available to extend the filing time of yet another suit. The statute may not be relied upon to indefinitely keep a cause of action alive. *** - 5 - Plaintiff's third suit *** was not brought in "due time" pursuant to R.C. 2305.19. * * * Within "due time" means an action brought within the original limitation of the statute of limitations. [Citing Bush v. Cole (1913), 1 Ohio App. 269, 271 aff'd (1914), 91 Ohio St. 369.] (Emphasis added). Id. at 3-4. Likewise here, the second action was not brought within "due time" and the savings statute was therefore not applicable to the third complaint filed. Other courts have reached the same conclusion on this issue. In Gailey v. Murphy (Feb. 24, 1993), Summit App. No. 15805, unreported, the court held: Where an action sought to be refiled was not filed within the statute of limitations but rather was filed within the period of time allowed by the savings statute, that action was not commenced before the expiration of the statutory limitations and does not qualify for refiling under R.C. 2305.19 Id. at 4-5. Nagy v. Patterson (Nov. 9, 1994), Lorain App. No. 94-CA-005837, unreported, presents circumstances similar to the instant case. In Nagy, the plaintiffs dismissed their first cause of action without prejudice. The trial court then dismissed plaintiff's refiled case without prejudice. When plaintiffs refiled their case a third time, the trial court granted defendant summary judgment. On appeal, the Nagy court affirmed and held: Upon dismissal of that second complaint, the Nagys are not granted another year under the savings statute because the action sought to be refiled, - 6 - the second complaint, was not commenced within the time allowed by the statute of limitations. Therefore, refiling of the second complaint as the third complaint does not qualify under R.C. 2305.19. Id. at 3-4. See Hancock v. The Kroger Co. (May 4, 1995), Franklin App. No. 94-APE10-1504, unreported, which follows Seawright, Gailey and Nagy in holding that the savings statute cannot be used more than once. Id. at 4. Plaintiff emphasizes the fact that both dismissals in this case were involuntary and without prejudice. Plaintiff alleges that only where a plaintiff voluntarily dismisses an action are subsequent refilings prohibited. However, even where a claim is involuntarily dismissed, subsequent refilings are prohibited. See Seawright, Gailey, Nagy and Hancock. This prohibition is premised not on the nature of the dismissal ("otherwise than upon the merits"), but because the refiling of the action was after the expiration of the statute of limitations and the prior case was not filed "in due time" under R.C. 2305.19. Plaintiff also erroneously relies on the holding set forth in Uhas v. New York Central Railroad Co. (1942), 70 Ohio App. 464. The Uhas case is inapplicable because there the plaintiff only used the savings statute once. The first two filings were within the two year statute of limitations, and therefore within "due time," unlike here, where the plaintiff attempts to invoke the savings statute for a second time. - 7 - The trial court properly granted defendant's motion for summary judgment since plaintiff's claims were barred by the statute of limitations and the savings statute was not applicable. Plaintiff's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant her 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 Court of Common Pleas 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 SARA J. HARPER, JUDGE JAMES M. PORTER, 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 journalization, at which time it will become the judgment and order of the Court and time period for review will begin to run. .