COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72049 : ACCELERATED DOCKET KAREN WORYTKO, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION LU-JEAN FENG, ET AL. : : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-317060 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: WILLIAM J. NOVAK STEPHEN S. CRANDALL THOMAS D. ROBENALT LINDA A. EPSTEIN 270 Skylight Office Tower Jacobson, Maynard, Tuschman & Kalur 1660 West 2nd Street 1001 Lakeside Avenue #1600 Cleveland, Ohio 44113-1498 Cleveland, Ohio 44114-1192 Michael J. Garvin 3300 BP American Building 200 Public Square Cleveland, Ohio 44114-2301 - 2 - PER CURIAM: Karen Worytko and Daniel Wohlenberg appeal from a common pleas court decision granting summary judgment to Dr. Lu-Jean Feng and Dr. Yanni Li on their respective claims for medical malpractice and loss of consortium arising from damage to the lateral cutaneous branch of Wortyko's second and third intercostal right-side nerves during the surgical removal of breast implants which she claims resulted in pain and numbness. The record reveals that on May 4, 1992, Dr. Feng removed silicone breast implants from Karen Worytko at Mt. Sinai Medical Center, that Dr. Li assisted during the surgery, and subsequently they terminated their professional relationship with her on October 18, 1992, the date of her last office visit. Further, the record reflects that on April 26, 1993, Worytko sent a 180- day notice-of-intent-to-sue letter, and actually filed suit against the doctors on October 21, 1993. Subsequently, however, she voluntarily dismissed that case on September 20, 1994, in accordance with Civ.R. 41(A)(1)(a). Next, appellants refiled suit on September 1, 1995, within the one year period described in R.C. 2305.19, Ohio's savings statute. The trial court originally scheduled the refiled case for trial on September 9, 1996, but reset the trial date to September 30, due to appellant's inability to go forward with an expert. Thereafter, the court again reset the trial to October - 3 - 7, 1996, and ordered appellant's expert to be deposed on or before that time. When the court called the case for trial on October 7, and when appellants could not proceed because of the inability to produce an expert witness, the court journalized an entry dismissing the refiled case without prejudice on October 8, 1996. Eight days later, on October 16, 1996, appellants again refiled the matter, but in response, Dr. Feng and Dr. Li filed a joint motion for summary judgment alleging that this refiling is not saved by R.C. 2305.19 but rather is barred by the applicable one year statute of limitations for medical malpractice. The trial court granted the joint motion for summary judgment and the appellants now appeal assigning two errors for our review, which we shall consider together. They state: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT FOR APPELLEE. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THAT APPELLEE IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. Appellants urge this court to reverse the summary judgment granted by the trial court, arguing that appellees were not entitled to judgment as a matter of law because the savings statute does not limit the number of times a litigant may invoke it to refile a complaint. Appellees contend the trial court correctly granted summary judgment asserting that a litigant may invoke the savings statute only once in an effort to commence an action. - 4 - Thus, we are asked to consider whether the trial court correctly granted summary judgment in this case when it ruled that the savings statute can be used only once to obtain an additional one year time limit to refile an action and barred appellants from invoking it a second time. In reviewing a summary judgment appeal, we note that Civ.R. 56(C) states in pertinent part: (C) *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***. From our review of the record, the briefs of counsel and representations of counsel at oral argument, we recognize that the parties agree that appellants timely filed the original complaint on October 21, 1993, and dismissed it on September 20, 1994, pursuant to Civ. R.41(A)(1)(a), after the original statute of limitations had expired; that appellants refiled the case on September 1, 1995, and that the court dismissed it without prejudice on October 8, 1996, for inability to proceed to trial; and that appellants refiled their complaint for a third time on - 5 - October 16, 1996, but on January 23, 1997, the trial court granted summary judgment to appellees, ruling that the savings statute could only be used once, and thereby barred this attempt to refile the case. That ruling forms the basis of this appeal. R.C. 2305.19 states in relevant 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. ***. Here, following the language of the savings statute, appellants contend both that the trial court's October 8, 1996 dismissal without prejudice of their refiled cause of action is a dismissal "otherwise than upon the merits", and that the time within which to file the original action "has expired". Appellants therefore assert the statutory right to refile a third complaint claiming the trial court erred in granting summary judgment because their case was refiled in accordance with the terms of R.C. 2305.19. In considering this matter, we note that R.C. 2305.19 also states, "*** the plaintiff *** may commence a new action within one year after such date. ***." (Emphasis added). This language refers to commencement of a single new action within a one year time period after the specific date of the reversal or the specific date of the failure otherwise than upon the merits, - 6 - and thus prevents a plaintiff from filing multiple or repeated actions beyond the one year time period from subsequent dates on which other filings may have been reversed or failed otherwise than upon the merits. Further, we note in Frysinger v. Leech (1987), 32 Ohio St.3d 38, the court stated at 42, Where R.C. 2305.19 applies, the date for filing the new action relates back to the filing date for the preceding action for limitations purposes. (Citations omitted.) (Emphasis added.) In accordance with that statement of relation back, appellants' third complaint filed on October 16, 1996, could only relate back to the preceding case which had been filed on September 1, 1995, within the one year savings statute, not to the original filing. As the court stated in Reese v. Ohio State University Hospitals (1983), 6 Ohio St.3d 162, This statute, the savings statute, is not a statute of limitations. Neither is R.C. 2305.19 a tolling statute extending the period of a statute of limitations. ***. Thus, we conclude that where an action has originally been timely commenced, R.C. 2305.19 provides an additional one year time period within which to commence a new action after the date of reversal or failure otherwise than on the merits, but is not available beyond that twelve-month period because the statute does not refer to multiple or successive one year time periods within which a new action could be repeatedly refiled thereby extending the original statute of limitations, and, further, - 7 - because the savings statute is not itself a statute of limitations, and, finally, because the date for filing a new action can only relate back to the preceding action. The logical extension of the appellants' position would undermine or abrogate every statute of limitation by authorizing repeated filings and dismissals of cases pursuant to the terms of R.C. 2305.19. We do not believe the legislature intended that result and decline to adopt such an interpretation. Our conclusion today is in accord with Hancock v. Kroger Co. (1995), 103 Ohio App.3d 266, where the court stated in its headnote: 1. Savings statute *** was not available to extend plaintiff's filing deadline for another year after third voluntary dismissal; savings statute could only be used once to invoke additional one-year time period in which to refile action. Because there are no genuine issues of material fact and because the appellees are entitled to judgment as a matter of law, the trial court correctly granted summary judgment in this case. Accordingly, that judgment is affirmed. - 8 - It is ordered that appellee recover of appellant 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. ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, 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 .