COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71125 STEPHANIE CHESLER, ET AL. : ACCELERATED DOCKET : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPHINE GIGLIOTTI : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 27, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 300030 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: WILLIAM P. LANG, ESQ. LYNN A. LAZZARO, ESQ. 33399 Walker Road J. MICHAEL CREAGAN, ESQ. P.O. Box 108 Meyers, Hentemann, Schneider Avon Lake, Ohio 44012-0108 & Rea Co., L.P.A. 2100 Superior Building 815 Superior Avenue, N.E. Cleveland, Ohio 44114-2701 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25. Plaintiffs-appellants Stephanie Chesler, et al. appeal from the trial court's order granting summary judgment in favor of defendant-appellee Josephine Gigliotti on the grounds that plaintiffs' refiled claim for personal injury was barred by the statute of limitations. We find no merit to the appeal and affirm the judgment below. Plaintiffs alleged that they were involved in a motor vehicle accident caused by defendant which occurred on May 13, 1993, on Interstate 480. Plaintiffs were passengers in a car driven by David Archbold at the time. Plaintiffs filed their initial complaint against the defendant on December 12, 1994, well within two years of the date of the accident. (C.P. No. 281654). Following a discussion with a claims representative employed by defendant's insurance carrier, plaintiffs voluntarily dismissed their complaint without prejudice pursuant to Civ.R. 41(A)(1)(a) on January 11, 1995, which was still within the two-year statute of limitations for bodily injury. (R.C. 2305.10). Plaintiffs subsequently refiled their complaint (C.P. No. 300030) on December 14, 1995, seven months after the two-year statute of limitations had expired. - 3 - Defendant moved for summary judgment on the grounds that the savings statute, R.C. 2305.19, was inapplicable to the facts of this case and that plaintiffs' claims were time-barred. The trial court granted defendant's motion for summary judgment and this timely appeal ensued. Plaintiffs' sole assignment of error states: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE PLAINTIFFS, WHEN IT GRANTED THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSED THE PLAINTIFFS' CLAIMS. Plaintiffs sustained their injuries in a motor vehicle accident on May 13, 1993. The applicable statute of limitations is R.C. 2305.10 which provides, in pertinent part: An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose. Plaintiffs in this case brought their initial action on December 12, 1994, well within the two-year limitations period. However, on January 11, 1995, plaintiffs voluntarily dismissed their action pursuant to Civ.R. 41(A)(1)(a). That rule provides that an action may be dismissed by a plaintiff without order of the court by filing a notice of dismissal at any time before the commencement of trial. Plaintiffs made no attempt to refile their action prior to the running of the statute of limitations, which occurred on May 13, 1995. Instead, plaintiffs refiled this action on December 14, 1995, some seven months after the statute had run. The refiling was done within one year of the voluntary dismissal, but clearly outside of the applicable statute of limitations. - 4 - It is apparent that plaintiffs believed the Ohio's savings statute afforded them one year after the voluntary dismissal in which to refile their complaint. They were mistaken, for the savings statute, R.C. 2305.19, provides, in pertinent part: 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 reversal or failure has expired, the plaintiff *** may commence a new action within one year after such date. A Civ.R. 41(A)(1) voluntary dismissal is a failure otherwise than upon the merits. Frysinger v. Leech (1987), 32 Ohio St.3d 38, paragraph two of syllabus; Gardner v. Gleydura (1994), 98 Ohio App.3d 277, 279. However, the savings statute (R.C. 2305.19) is not applicable to actions dismissed before the statute of limitations has run. A party who voluntarily dismisses an action before the applicable statute of limitations has run cannot take advantage of the savings statute. Malatesta v. Sharon Twp. Trustees (1993), 87 Ohio App.3d 719, 722; Armstrong v. Harp Realty Co. (1991), 73 Ohio App.3d 292, 295; Ardire v. Westlake (March 9, 1995), Cuyahoga App. No. 67088, unreported at 3. Since the savings statute is not applicable to the plaintiffs' refiling, then the matter was filed outside of the applicable statute of limitations and is barred as a matter of law. Plaintiffs argue here, as they did in the trial court, that defendant's insurance carrier, through its claims representative, either waived the statute of limitations or agreed to extend the - 5 - limitations period to one year beyond the date of voluntary dismissal. However, the evidentiary material submitted in support of this argument, the affidavit of plaintiffs' attorney and correspondence from the claims representative, does not establish either a waiver of the statute of limitations defense or an agreement to extend the limitations period. Rather, the materials display the erroneous belief that the savings statute would be applicable and that plaintiffs would have a year to refile their case after a voluntary dismissal. Unfortunately the savings statute only applies to voluntary dismissals where an action is dismissed after the statute of limitations has already run. That was not the case here. The letter of the claims representative does not contain any agreement to extend the limitations period in this case by one year. The letter does not make any mention of time. Rather, it states: "[I]t is my understanding that you will be dismissing the pending lawsuit on behalf of your clients against our insured, with the right to refile this case in the future should that situation become necessary." This is not a case where an insurance adjuster was dealing directly with a claimant and took advantage of the claimant's trust or ignorance of the law. Nor is it a case where there was any misrepresentation by the claims representative on which plaintiffs relied to their detriment. There is no reason on the facts of this - 6 - case that the defendant should be estopped from asserting the bar of the statute of limitations. While the doctrine of estoppel may in a proper case be employed to prevent a fraudulent or inequitable resort to the statute of limitations defense, an essential element of such an estoppel is a misrepresentation by a defendant or his agent which misleads the plaintiff so that he fails to commence his action within the statutory period. Bryant v. Doe (1988), 50 Ohio App.3d 19, 21-22. See, also, Schrader v. Gillette (1988), 48 Ohio App.3d 181, 183 ("to invoke this doctrine, the party must show that he reasonably relied upon a misleading statement"). In this case, there is no evidence to suggest any misrepresentation or misleading statements by defendant's representatives. Plaintiffs incorrectly assumed that they had the benefit of the one-year savings statute after their voluntary dismissal. When plaintiffs refiled their action on December 14, 1995, the statute of limitations had run and plaintiffs' action was barred as a matter of law. The trial court properly entered summary judgment for the defendant. Plaintiffs' sole assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants 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. PATRICIA A. BLACKMON, PRESIDING JUDGE JAMES M. PORTER, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .