COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71733 LAURA KOSLEN, ET AL. : JOURNAL ENTRY : AND Plaintiffs-appellants: OPINION : -vs- : : AMERICAN RED CROSS : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-309572 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: DONNA TAYLOR-KOLIS, ESQ. PATRICIA A. SCREEN, ESQ. 1015 Euclid Avenue, 3rd Floor JOYCE D. EDELMAN, ESQ. Cleveland, Ohio 44115 HUGH E. MCKAY, ESQ. ALAN C. YARCUSKO, ESQ. PORTER, WRIGHT, MORRIS & ARTHUR 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 For Elliott Dickman, M.D.: WILLIAM D. BONEZZI, ESQ. JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Ave., #1600 Cleveland, Ohio 44114-1192 For Martin Schnieder, M.D.: DOUGLAS G. LEAK, ESQ. JOSEPH A. FARCHIONE, ESQ. JACOBSON, MAYNARD, TUSCHMAN & KALUR 1001 Lakeside Ave., #1600 Cleveland, Ohio 44114-1192 -3- DYKE, J. Appellants, Laura and Jack Koslen, are appealing the trial court's dismissal of their action against appellees, Drs. Elliot Dickman and Martin Schneider and the American Red Cross. The suit was dismissed as untimely. For the following reasons, we affirm. According to the complaint, Drs. Dickman and Schneider administered blood transfusions to appellant Laura Koslen. The American Red Cross supplied the blood products. The transfusions occurred on May 3, 1988 and January 28, 1989. On June 20, 1990, Koslen discovered she had been infected with the hepatitis C virus. Koslen and her husband filed suit on November 22, 1991. On April 2, 1993, the trial court dismissed the case without prejudice pursuant to Civ. R. 41(B)(1), because plaintiffs-appellants failed to obtain an expert report as ordered. Plaintiffs re-filed on March 25, 1994. On June 14, 1995, plaintiffs voluntarily dismissed their action, pursuant to Civ. R. 41(A)(1). Plaintiffs filed this suit for the third time on June 3, 1996. The trial court dismissed the third action, stating in its journal entry that R.C. 2305.19, the savings statute, can be used only once to obtain an additional year to re-file an action. Appellants' sole assignment of error states: THE TRIAL COURT ERRED IN CONCLUDING THAT O.R.C. SECTION 2305.19 CAN ONLY BE APPLIED TO ALLOW ONE REFILING AFTER AN ORIGINAL ACTION HAS BEEN DISMISSED WITHOUT PREJUDICE. The statute of limitations for a medical malpractice action is one year, and the statute of limitations for a bodily injury is two years. R.C. 2305.11, 2305.10. Appellees concede for purposes of -4- appeal that the first suit was filed timely. The second and third suits are outside the statute of limitations. The savings statute allows the filing of the second action, although it is technically untimely. The savings statute 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 on 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. R.C. 2305.19. The issue here is whether the savings statute can be applied to the third action. The Ohio Supreme Court recently stated that, . . . the savings statute can be used only once to refile a case. Hancock v. Kroger Co. (1995), 103 Ohio App.3d 266, 659 N.E.2d 336; Iglodi v. Montz (Aug. 4 1995), Cuyahoga App. No. 68621, unreported, 1195 WL 516609. Thomas v. Freeman (1997), 79 Ohio St.3d 221, 227. The facts of Thomas did not present the issue of whether the savings statute could be used only once, however. The holding of Thomas was that a trial court's dismissal for failure to prosecute, due to failure to obtain service on the defendant was a dismissal other than on the merits. The Court noted that the defendant who had not been served was not subject to unlimited refilings, because the savings statute could be applied only once. The Ohio Supreme Court's holding in Cero Realty Corp. v. American Mfgrs. Ins. Co. (1960), 171 Ohio St. 82 implied that the savings statute could be used only once. Cero held that the savings statute has four elements: -5- (1) an action timely commenced, (2) failure of plaintiff in the action otherwise than on the merits , (3)expiration of the time limit for commencing the action at the date of such failure, and (4) the right of the plaintiff to commence a new action within one year of such failure. Id. at 85. Cero, as well as R.C. 2305.19, states that the plaintiff has the right to file a new action, not multiple actions. Cero required that the previously dismissed action be timely commenced. If the savings statute was used once, the second action was not timely filed, so the third action could not be preserved by the savings statute. A number of appellate cases have directly held that the savings statute can be used only once. Hancock v. Kroger (1995), 103 Ohio App.3d 266, Iglodi v. Montz (Aug. 31, 1995), Cuyahoga App. No. 68621, Worytko v. Feng (July 3, 1997), Cuyahoga App. No. 72049, unreported, Seawright v. Zabell (April 27, 1989), Cuyahoga App. No. 55232, unreported, Mocker v. Goldsmith (Apr. 2, 1996), Mahoning App. No. 94CA169, unreported, Gailey v. Murphy (Feb. 24, 1993), Summit App. No. 15805, unreported, Nagy v. Patterson (Nov. 9, 1994), Lorain App. No. 94CA005837, unreported, cert. denied 71 Ohio St.3d 1502. The savings statute can be used only once, because otherwise, a plaintiff could infinitely refile his action, and effectively eliminate statutes of limitations. Seawright, Hancock, supra. Additionally, as noted in Worytko, supra, the date for filing a new action relates back to the date of filing the immediately proceeding action for limitation purposes. Frysinger v. Leech (1987), 32 Ohio St.3d 38. If the savings statute used once, the third action relates back to the second action, which was -6- untimely. Hancock, Iglodi and the other appellate cases are based upon Bush v. Cole (1913), 1 Ohio App. 269. Appellants contend that Bush applied an older version of the savings statute, so Bush is outdated law and all the cases relying on Bush are incorrect. The statute in effect when Bush was decided had substantially the same wording as R.C. 2305.19. The statute stated, If, in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed or if the plaintiff fail otherwise than upon the merits . . . R.S. 4991. This version of the statute was in effect since 1894. Hancock, Iglodi, and the other above cited cases correctly relied upon Bush, which interpreted a substantially similar statute. Appellants contend that they have the right to voluntarily dismiss once and refile, pursuant to Civ. R. 41(A)(1)(a). Civ. R. 41 does not prevent a case from being filed a third time if the case is voluntarily dismissed by the plaintiff one time and dismissed by stipulation or by the court another time. Randustrial Benefit Plan v. Rollins Burdick Hunter Agency (1984), 16 Ohio App.3d 144, Litton v. Joslin (1985), 22 Ohio App.3d 108, Riley v. MCO (1992), 83 Ohio App.3d 139, Graham v. Pavanini (1983), 9 Ohio App.3d 89, Hershieser v. BOS Corp. (1990), 69 Ohio App.3d 186, Bowen v. Tony Perry Chevrolet (Aug. 16, 1995), Summit App. No. 2415-M, unreported. However, none of these cases involved the issue of whether the savings statute could be applied twice in the same action. The refiling, even if allowed pursuant to Civ. R. 41, must be within the statute of limitations or the savings statute. -7- See Brookman v. Northern Trading Co. (1972), 33 Ohio App.2d 250, Iglodi, supra. Logsdon v. Nichols (1995), 72 Ohio St.3d 124 does not support appellants' argument. In that case, the complaint was filed three times, but the defendant never objected to the third filing. Logsdon did not address the issue of whether the savings statute could be used only once. The savings statute could not be applied to the third action, filed June 3, 1996. The complaint filed June 3, 1996 was untimely. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellees recover of appellants 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 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. NAHRA, J., AND PATTON, J., CONCUR. ANN DYKE PRESIDING 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 .